The marriage and divorce bill, 2009 (Analysis)

By : Abdallah Sekibembe

SAMPLE QUESTION:
The Marriage and Divorce Bill introduces a number of new areas that are currently not addressed by the present Divorce and Marriage laws in Uganda.
Draft a legal memorandum highlighting the new areas introduced by the Bill and the import of such clauses on Ugandan Jurisprudence

INTRODUCTION:
Prior to the enactment of the marriage and divorce Acts, there was experienced quite a number of continuous debates on what the position of the law would be as regards to marriage and divorce. Various legislators, writers and scholars averred that the rationale behind the tabling of the Marriage and divorce bill, 2009 was mainly to secure protection of the rights of women and wives in society in conformity with the various laws of Uganda, according to a memorandum laid by the UWONET, there was also need for Uganda to be in conformity with its obligations under international law to domesticate human rights conventions and treaties that it ratifies. Despite the controversies and mixed feelings received from the tabling of this bill, majority of its provisions are in conformity and within the accepted laws of Uganda. The purpose of the bill is very clear and it is to reform and consolidate the law relating to civil, Christian, Hindu, Bahai and customary marriages; to provide for the types of recognized marriages, marital rights and duties; recognition of cohabitation in relation to property rights; separation and divorce, and the consequences of separation and divorce; and for related matters.

BACKGROUND:
This Legal memorandum is therefore highlighting the new areas introduced by the bill that are not addressed by the current Marriage and Divorce laws, it also lays an analysis on their applicability on the existing laws and their importation on Ugandan jurisprudence.

Clause 13 (1) of the Marriage and divorce bill which provides that widow inheritance is prohibited would work well under the laws of Uganda as its applicability would be in conformity with Articles 31, 32 and 33 of the 1995 Uganda constitution which secure the dignity of women equaling to that men for this matter which importation on Ugandan jurisprudence would fill the gaps of the existing laws. Article 32(2) of the Uganda constitution, 1995 provides that laws, cultures, customs and traditions which are against the dignity, welfare and interest of women or which undermine their status, are prohibited by the Constitution. This essentially means that women have the same rights as men and therefore can’t be subjected to inheritance as this would also be in contravention with Article 21 of the Uganda constitution. A case in relation to this is one of Best Kemigisha v. Mable Komuntale where it was a custom under the Toro tribe to inherit the deceased’s estate and wife inclusive as she was regarded as property. Court rejected this custom and considered it contrary to Articles 31(2) and 33 of the Uganda constitution.

Cause 14 of the bill is to the effect that marriage gifts are not an essential requirement for any marriage under the act, it is furthermore provided under this same clause that it be will an offence (a fine not exceeding twenty four currency points or imprisonment not exceeding one year or both) to demand for the return of such a gift that has been given by a party to a marriage. According to the Uganda women’s network (UWONET), the rationale behind giving such gifts was to exchange wealth for reproductive powers, validate a marriage and to compensate the bride’s parents for her upbringing and loss of labour to her family. These gifts are not addressed as an essential requirement to a marriage as they effectively grant the husband the right to major decision making, control and ownership of family property, ownership of the children and control over the wife as noted under this memorandum for this matter and this would erode the rights of women under a marriage.

Under Part III of the bill, it is provided under clause 15 that a person shall not have the capacity to contract a civil marriage unless he or she has attained eighteen years of age. A clear interpretation of the term “Civil marriage” is not given under Bill neither the marriage Act too, however, according to the Oxford learner’s dictionary, a civil marriage is defined as a marriage solemnized as a civil contract without a without a religious ceremony. Importation of a such a clause would not in any way contradict with the current laws of Uganda, Article 31 of the Uganda constitution clearly provides that men and women of the age of eighteen years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. This clearly shows that marriage before eighteen years old is entirely prohibited. The importation of a clause on Ugandan jurisprudence would give proper guidance on the right age of marriage since various statutes statute conflicting ages save for the Mohammedan Act that doesn’t specify any. Secondly, it would protect young girls from being subjected from early marriage. Cases in this regard include Alhaji Mohamed v Knott, Pugh v Pugh.

Clause 17 advocates for prohibition of certain degrees of relationship (prohibited degrees of relationship) which may be natural, legal, or by clan. This is also seen under clauses 17, 39, 60, 82(1) d, 97(1) e of the same bill. The prohibited degrees of relationship are listed under the Second Schedule of the Bill which could include mother – father, mother's daughter - father’s son, daughter - son etcetera. Rodgers, 2004, p.16 notes that there are two types of prohibited degrees within the law and they clearly reflect the question ‘who can marry whom? The first category of relationship is the prohibited degrees of consanguinity, that is, relationships by blood and the second is the prohibited degrees of affinity and these are relationships created by marriage. ME Rodgers furthermore notes that the closer the blood links between parents, the greater the genetic defects in the off springs therefore marriage within the prohibited degrees of relationship (consanguinity in specific) may increase the risks of inherited disease. The morality and customary policy of Ugandan jurisprudence today would entirely agree with the above provision most if not all laws are silent on the matter. This clause would therefore work favorably in Uganda as it would uphold the moral values of the present day society. A case in point that tries to illustrate Clause 17 is one of Bruno Kiwuwa v Ivan Serunkuma and Juliet Namazzi where court adopted the view that two people from the same clan (Ndiga clan in this case) could not get married as this was in contravention of the customary laws of the Baganda tribe.

The act of marriages between persons of the same sex is prohibited (same sex marriages) as provided for under Clause 18 of the Marriage and divorce bill. Such a clause would perfectly fit well in the moral set of Ugandan jurisprudence as also provided for under Article 31 (3) of the Uganda Constitution which provides that marriage shall be entered into with the free consent of the man and woman intending to marry. This particular provision shows that marriage in Uganda is only restricted between two people of the opposite sex. Such a position still holds precedence in Uganda despite change in modern family law in the western world. Initially the position was that a homosexual union could not be recognized as one of a husband and wife, this position was however overturned in the case of Fitzpatrick v. Sterling Housing Association where it was recognized that same sex couples are members of the same family and should be entitled to equal rights as those of married couples under the Rent Acts. In Uganda, the importation of Clause 18 of the bill would entirely uplift and maintain the moral standards and virtues provided for under the law plus the customs in society, this would therefore create a great positive impact on the society.

Clause 114 of the bill is to the effect that spouses in a marriage shall have conjugal rights. Clause 114(2) however notes that a spouse may deny the other spouse the right to sexual intercourse on reasonable grounds which may include; poor health, surgery that affects the capacity to engage in sexual intercourse, child birth, reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological injury or harm. This provision has however received a lot of questioning from various scholars and writers especially on the matter regarding psychological injury or harm since there is no clear definition on the matter. Its importation on Ugandan jurisprudence would break marriages since various parties would end up misusing it in one way or the other.

On the matter regarding matrimonial property, Clause 115 of the marriage and divorce bill lays down the various types that is to say; the matrimonial home, household property in the matrimonial home, any other property either immovable or movable acquired before or during the subsistence of a marriage, deemed to be matrimonial property by express agreement, property which was separate property but which a spouse has made a contribution towards, except where the property relates to the sale of family land, and seed money provided by a spouse for the establishment of a business. In regards to the above provision, Clause 116 justifies the position that such matrimonial property shall be owned in common by the spouses. The importation of the above provisions under the current laws of Uganda would fit in their framework, Article 33 (4) which shows that women and men shall enjoy the same opportunities, rights and in this case, have equal access to matrimonial property as also provided for under Clause 124.

Equal access shall be concerned with the right to use, benefiting from the property and equal rights to disposal of the property. This is established under the case of Kintu Muwanga v Myllious Gafabusa Kintu where Lady Justice Bbosa J noted that “the position of Ugandan women in a matrimonial relationship has drastically changed since the 1995 Constitution came to into force. Article 31 guarantees men and women of age eighteen years and above, to have the right to marry and found a family and are entitled to equal right in marriage, during marriage and at its dissolution. Other cases in relation to matrimonial property include Pettit v. Pettit,Edith Nakiyingi v. Melekizedeki.

It is pertinent to read the above clauses, 116 and 116 with Clause 129 of the bill which condemns transactions entered in respect of any matrimonial property except with2 the prior written consent of the other party. The reason behind is to protect the livelihood of the family members dwelling in such property since they derive sustenance from there in. This position is expressly emphasized under S.39 of the Land Act Cap 227.

The position of the bill on the principle of cohabitation provided there in leaves so much to be desired as it doesn’t give an exhaustive explanation on the matter. The bill only limits itself to the interpretation of the term, which is meant to mean “a man and a woman living together as husband and wife”. This definition is in conflict with true meaning of the word, according to the Oxford Advanced learner’s dictionary 7th edition, the term “cohabit is meant to mean where a man and a woman live together and have a sexual relationship without being married, A definition is also given in the case of Dewell v. Fernelis This essentially means that it is an arrangement where a man and woman decide to live together as husband and wife but decide not to go through any form of marriage.

Various scholars, feminists and writers believe that this provision was meant to protect the vulnerable parties to a relationship who in most cases are women since the law doesn’t recognize this form of relationship. Their moral belief is that the law should declare that as long as one brings a woman into his wife, she is a wife.

Clause 63 of the Marriage and Divorce bill is to the effect that a person intending to marry shall give notice of his/her intention to marry in writing to a Sub-county Chief which notice in turn would be entered in in the marriage notice book. This in my view would give customary marriage more authority as a recognized form of marriage as it is equivalent to marriages entered in the marriage registrars’ book for this matter provided for under the marriage act hence been a positive importation on Ugandan jurisprudence.

Clause 140 of the bill stipulates that during the first two years of marriage and before their expiry, a person has no right to petition for separation. This provision in my view is entirely in contravention with Article 31(1) of the Uganda Constitution which clearly provides that men and women have a right to dissolve a marriage at any time and a clear procedure has been laid down under the relevant law which is the marriage Act. This therefore shows that the importation of such a clause would cause difficulty while being applied to the existing laws of Uganda. However, to a lesser extent one can still argue that such a provision can still fit in the framework of the current law since a spouse can apply to the relevant court for leave (permission) to bring a petition for divorce before the expiry of the two years and this can only happen where he/she is suffering exceptional hardship in the marriage as provided for under clause 140(2).

Clause 145 of the bill provides that a petition for divorce may be brought by either party to a marriage under the act. The same position expressed under the bill is seen under section 4 of the Divorce Act but in a different way. Section 4 (Grounds for divorce) initially limited petitioning of the husband in courts of law against the wife on grounds of adultery and the reverse is true on the part of the wife petitioner since they had to prove a number of things. However court in the case of Uganda Association of Women Lawyers and 5 others vs. The Attorney General Clause 12(2) of the marriage and divorce bill provides that a marriage shall be recognized in Uganda as valid a marriage where it is conducted with the laws of another country or where one or both of the parties is subject to the laws of that country for this matter. This is however with the exception of same sex marriages. This provision will fit within the framework of Ugandan laws as it is in accordance with Articles 21 and 31 of the 1995, Uganda constitution.

The writer is a student of Law at Uganda Christian University School of Law