Matrimonial property in Uganda, Lecture notes of Family Law

Download Matrimonial property in Uganda and more Lecture notes Family Law in PDF only on Docsity! THE EVOLUTION OF THE LAW RELATING TO MATRIMONIAL PROPERTY IN UGANDA The law relating to matrimonial property is hinged on the concept of marriage. This law only and strictly applies to married and/or formerly married persons. In Case v Ruguru, court held that since the defendant was not legally married to the plaintiff, she could not base a claim of occupancy on ground that she was the plaintiff’s wife. Marriage is the legal union of a couple as husband and wife (Black’s Law Dictionary pg. 3084). Under Article 31(1) a person of the age of 18 years and above has a right to marry. There are various forms of marriages in Uganda. The forms of marriage recognized in Uganda include marriages conducted in accordance with the Marriage Act Cap. 251, Customary Marriage (Registration) Act Cap. 248, the Marriage & Divorce of Mohammedans Act, Cap. 252, the Hindu Marriage & Divorce Act, Cap. 250 and marriages contracted under or in accordance with any customary law recognized by the law of Uganda. A person can contract a marriage in any of the above forms. Matrimonial property in Uganda has not yet been clearly defined either by statutory law or case law. However courts have provided a starting point for determination of what constitutes matrimonial property. In the case of Muwanga v Kintu (1997), Bbosa J noted that matrimonial property’ to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.” The law relating to matrimonial property in Uganda has come a long way. To best understand the evolution of matrimonial property law, it is pertinent to understand the social perception of women’s property rights in Uganda at the different times. Matrimonial property law cannot easily be detached from the law relating to women’s property rights. Indeed there is no better argument to support this factual assertion than that of Twinomujuni JA in Julius Rwabinumi V Hope Bahimbisomwe Civil Appeal no.30 of 2007 when he stated that, ‘A woman was regarded as a property of the man and totally incapable of holding property of her own independently of the man. As a result, the earlier court decisions held that women in a matrimonial relationship could not acquire and hold real property.’ In the pre-colonial era, marriage and matrimonial property were basically governed by customary law. Customary law depended on the customs of the different societies in Uganda. During this time women could not own property. The property was basically owned by the man. A woman could hardly claim a thing on divorce. Okumu Wengi argues that this is because a woman was considered as a source of labour and divorce meant loss of source of labour (Weeding the Millet Field). During the colonial era, courts interpreted customary law in terms favourable to women (Khadhadiagala, 2002 pg.2). The courts protected the rights of women in relation to matrimonial property and ownership of land. The protection of these rights was embedded in two legal principles; the house property complex and the principle of gifting. The house property There was a radical change in the law relating to matrimonial property in Uganda after the promulgation of the 1995 Constitution. This era is referred to as the post-1995 era. The Constitution introduced a new principle of law in relation to matrimonial property; the equality in marriage principle. This principle is encapsulated in Article 31 (1) of the 1995 Constitution and it is to the effect that men and women are entitled to equal rights in marriage, during marriage and at its dissolution. As a result, several provisions of the Divorce Act which were not in conformity with the Constitution were declared null and void in the case of Uganda Association of Women Lawyers & Others v Attorney General Constitutional Petition No.2 of 2003. The question of equal rights in marriage has been a subject of debate. In Julius Rwabinumi V Hope Bahimbisomwe Civil Appeal No.30 of 2007, Twinomujuni JA held that at the time the bridegroom and bride become husband and wife, all the property they own become joint matrimonial property and on separation they should be equally divided and shared to the extent possible and practicable. However on appeal to the Supreme Court, Kisakye JSC observed that,’ The learned Justice of Appeal not only wrongly articulated the law as to what constitutes matrimonial property, but also how and when individually held property of person acquired before or during marriage becomes matrimonial property.’ The court held that a spouse can own individual property as per Article 26 or jointly with his/her spouse. Further it was held that,’ Article 31(1) (b) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or the husband at divorce, it does not, in my opinion, require that all property either individually or jointly acquired before or during the subsistence of a marriage should in all cases, be shared equally upon divorce.’ It was concluded that the question whether individual property became joint matrimonial property and whether it should be divided equally on divorce depends on the facts of each individual case. Where a spouse makes a substantial contribution to the property, it will be considered matrimonial property. The contribution may be direct and monetary or indirect and non- monetary. In Muwanga v. Kintu, High Court Divorce Appeal No. 135 of 1997, (Unreported), Bbosa, J., adopted a wider view of non-monetary indirect contributions by following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu, [1990 – 19994] E.A. 270. In that case, Omolo JA found that the wife indirectly contributed towards payments for household expenses, preparation of food, purchase of children’s clothing, organizing children for school and generally enhanced the welfare of the family and that this amounted to a substantial indirect contribution to the property. The property a couple chooses to call a home will be considered joint matrimonial property. This together with the property either of the spouses contributes to is what matrimonial property is. Summarily, Bbosa J in Muwanga v. Kintu supra held that’ the property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.” The question of whether property should be divided equally on divorce depends on the individual circumstances of the case. In Gissing v. Gissing, the House of Lords held that it is not in every case that the parties hold in equal shares. In Mayambala v Mayambala, High Court Divorce Cause No. 3 of 1998, the wife’s interest in the matrimonial home was established at a 70% share. The Supreme Court in Rwabinumi’s case supra summed it up and held that whether such property should be divided either in equal shares or otherwise depends on the facts of each case. The other important legal aspect in relation to matrimonial property is enshrined in section 38 of the Land Act as amended. The section guarantees the security of occupancy of every spouse on family land. This means that the spouse has a right to have access to and live on family land. The Land Act as amended under section 39 restricts transfer of family land without spousal consent. The Act prohibits the sell, exchange, mortgage, lease or transfer of family land without the consent of his or her spouse. In Alice Okiror & Anor v. Global Capital Save 2004 & Anor, it was held that in the absence of written spousal consent to mortgaging the property in issue for the amount stated therein, the mortgage created over it was void. There have been attempts to modify the law relating to matrimonial property in Uganda. However these attempts have been futile. First was the Domestic Relations Bill 2003. This bill had been in parliament since 1965. It sought to define matrimonial property thereby clearing the doubt as to what