The law of Uganda recognises five marriages in Uganda and these are Church marriage, civil marriage, customary marriage, Islamic and Hindu marriages., Assignments of Family Law

Download The law of Uganda recognises five marriages in Uganda and these are Church marriage, civil marriage, customary marriage, Islamic and Hindu marriages. and more Assignments Family Law in PDF only on Docsity! Part a, LEGAL MEMORANDUM TO: MR. MUTEBE PHILOMON MRS. MUTEBE MARTHA NALUKWAGO P.O.BOX 345 KIRA BULINDO, WAKISO DISTRICT. FROM: FRIM 6 &Co. ADVOCATES, P.O.BOX 42, MBARARA Date: 8TH FEBRUARY 2021 Dear Sir/Madam. RE: LEGAL MEMORANDUM AVAILABLE REMEDIES TO THE PARTIES. STATEMENT OF RELEVANT FACTS Mutebe Philemon got married to Martha Nalukwago at Uganda Martyrs Catholic Shrine Basilica, Namugongo on the 2nd November 2015. They have one child Emmanuel aged 4 years and they live at Kira Bulindo, Wakiso District. Martha restricts Mutebe from relating with his relatives and his other 4 children he got before she got married to him, who are aged between 15 and 5. She believes that all his female relatives are his girlfriends and does not want them around their home and yet these relatives and his four children are all dependent on Mutebe her husband. Martha and Mutebe met while working as State Attorney’s in the office of the Directorate of Public Prosecutions and at the time Mutebe was already in a relationship with Shanice whom he loved dearly but had developed serious misunderstandings. Martha took advantage, provided Mutebe a shoulder to lean and decided to delete Shanice’s messages to Mutebe and threaten her to stay away from her man. Martha conceived Mutebe’s child and in fear of Martha’s parents, Mutebe got married to her. Martha did not disclose to Mutebe her mental illness that would render her unconscious for some time a reason Mutebe said had he known he wouldn’t have married her for this puts him in pain and mental anguish. She frequently fights and quarrels with him to a point she recently sold his motorcycle which she suspects he rides upon with his girlfriends. Due to all this and the feeling of betrayal he got a job abroad in Arusha to stay sane where he has happily been since January 2019 about his decision. Though Martha still wants to stay with her husband that she loves him and that it’s good for their son. 1 | P a g e Before Mutebe got married to Martha, he owned a commercial building in Mbale which is rented out to National water and Sewage Corporation (NWSC) and also owns a house at Namugongo. Martha on the other hand acquired properties in Najeera, Buwaate and Ssonde. As a couple they acquired a house at Kira Bulindo where Martha is currently living, a hardware shop in Bweyogere, a fuso truck that they hire out and a supermarket at Seeta. LEGAL ISSUES 1. What are the possible remedies available to both parties? 2. What documents should be drafted in order to attain the most appropriate remedy? 3. How should the property be distributed upon dissolution or suspension of the marriage? 4. What orders to be prayed for during dissolution and how to prove them? LAW APPLICABLE 1. Constitution of The Republic of Uganda 1995 2. Marriage Act Cap 251 3. Customary Marriage and Registration Act Cap 248 4. The Children Act Cap 59as Amended 2016 5. Divorce Children (Family and Children Court) Rules 6. Divorce Act Cap 249 7. Judicature Act Cap 13 8. Magistrates Courts Act Cap 13 9. International Convention on the Rights of Children1989 10. Case Law What are the possible remedies available to both parties? Whenever marriage fails to work out, the parties should try as much to reconcile. However where reconciliation fails, the parties have two option separation or divorce. Separation is either mutual or judicial. 1) Mutual separation/agreement. Under this arrangement the parties mutually agree to suspend their marital obligations for such terms as agreed upon. The agreement is reduced in to writing. The parties agree to stay a part for a given period after which they could decide to either get back together or initiate divorce proceedings. 2 | P a g e Section 30 of the Divorce Act provides for procedure that subject to the provisions of this Act, all proceedings under this Act shall be regulated by the Civil Procedure Act. Section 31 of the Divorce Act provides for Petitions; (1) Every petition shall state, as distinctly as the nature of the case permits, the facts on which the claim is based, and shall be verified as if it were a plaint, and may at the hearing be referred to as evidence. (2) Petitions for dissolution of marriage, or for nullity of marriage, or for judicial separation, shall state that there is not any collusion or connivance between the petitioner and the respondent. EFFECT OF JUDICIAL SEPARATION The decree of judicial separation has one major effect on the marriage and that is; the petitioner is relieved from the duty of co-habiting with the respondent. This means that so long as it is in force and the parties have not reconciled, neither spouse can be in dissention and also if the husband has sexual intercourse with the wife against her will, he will be guilty of rape contrary to Section 123 of the Penal Code Act Cap. 120. Section 15 of the Divorce Act Cap. 249 is to the effect that where judicial separation has been granted, the wife shall from the date of the decree be considered as unmarried with respect to property which she may acquire and she may dispose it off as if she were an un married woman. Section 18 of the Divorce Act Cap 249 provides that court is supposed to make protection orders in respect to the wife’s property where the husband may have acquired interest by virtue of the marriage in case of e deserts her, court is supposed to make an order to protect any property which she may have acquired after desertion. Section 16 of the Divorce Act is to the effect that a wife shall be personally liable for contracts, wrongs and injuries, can sue or be sued in any civil proceedings and that the husband shall not be liable of any contract, act or costs entered into, done, omitted or incurred by her during the separation except where alimony has been decreed or ordered to be paid to the wife. Section 20 of the Divorce Act is to the effect that court has powers to make an order of restitution of conjugal rights. However, whatever is pleaded in answer to a petition for restitution of conjugal rights shall not be a ground for judicial separation. It should be noted however that judicial separation de jure does not end the marriage but the marriage de facto comes to an end upon the decree of judicial separation. 5 | P a g e Therefore, from our instant facts, we see that Mutebe suffers mental anguish due Martha’s illness and this amounts to cruelty, Mutebe has also deserted Martha for two years now and those alone call for Judicial separation. Therefore, Mutebe can petition for Judicial separation 3) Divorce Another option available to the parties is divorce. Divorce involves the termination of marriage by a court of competent jurisdiction. The law relating to divorce is consolidated in the Divorce Act Cap249 and the rules made there under. In a petition for divorce, it is incumbent on the petitioner to prove existence of a valid marriage domiciled in Uganda, the ground for divorce and absented of any bars to divorce. It should be noted that for court to pass a decree of divorce, the petitioner should have been domiciled in Uganda at the time the petition is presented. This is provided for under section 1 of the Divorce Act. This was further stated in the case of Joy Kigundu vs Aggrey Awori (2001-2005) HCB 122. The court held that section 2 currently section 1 of the Divorce Act is to the effect that a decree for the dissolution of marriage cannot be made unless the petitioner is domiciled in Uganda at the time which the petition is presented. From our instant facts, it is clear that Mutebe can't withstand the chaotic character of Maratha therefore we advise him to petition for divorce. However, it’s also clear that Mutebe hasn’t come back from Arusha and in the in this circumstance, he has to first return to Uganda for his petition for dissolution of marriage to be sustained. Grounds for Divorce. This is provided for under Section 4 of the Divorce Act, however it must be read in conjunction with the case of Uganda Association of Women Lawyers vs A.G, constitutional petition No.2 of 2003, wherein it was held that the ground s for divorce under Section 4 of the Divorce Act now available to both men and women. This mean that a person has to prove one ground in case of divorce. I. Cruelty Habyarimana vs Habyarimana (1980) HCB 139, it was held that the general rule in all question of cruelty is that the whole matrimonial relationship must be considered and the rule of special value when the cruelty consists not of violent act but of injurious reproaches, complaints accusations and taunts. 6 | P a g e II. Desertion In Nassuna Edith Zavuga vs Jasper Serwanga and anor DC No.10 of 2002, Rwamissazi KagabaJ held that desertion can be constructive where one of the party in the marriage makes it difficult for the other path to live in their matrimonial home and that person leaves, desertion is umpired on that person who was making it difficult for the other person to stay in their matrimonial home. There for the mere fact that Martha's character was so outstanding that Mutebe cannot outstanding it amount to desertion from the other person. III. Adultery. Habyarimana vs Habyarimana (1980) HCB 139 Odoki defines Adultery as the consensual sexual inter course during the subsistence of marriage between one spouse and another person of the opposite sex not being the others spouse. In Nyakairu vs Nyakairu (1979) HCB261 Ntabgoba held that in allegations of Adultery. The facts must be interfered from the circumstances of the case. PROCEDURE Rule 4 of the Divorce Rules 249-1 provides that the forms in the First Schedule to these Rules may be used in proceedings under the Act. Section 30 of the Divorce Act provides for procedure that subject to the provisions of this Act, all proceedings under this Act shall be regulated by the Civil Procedure Act. Section 31 of the Divorce Act provides for Petitions; (1) Every petition shall state, as distinctly as the nature of the case permits, the facts on which the claim is based, and shall be verified as if it were a plaint, and may at the hearing be referred to as evidence. (2) Petitions for dissolution of marriage, or for nullity of marriage, or for judicial separation, shall state that there is not any collusion or connivance between the petitioner and the respondent. Rule 2 of the Divorce Rules. S.I 249-1 provides for Summons that a summons shall issue in all suits under the Act, and a copy of the petition shall be attached to the summons. Section 32 of the Divorce Act provides for Service of petition that every petition under this Act shall be served on the party to be affected by it, either within or without Uganda, in such manner as the court may, by general or special order, from time to time direct; except that the court may dispense with such service in case it seems necessary or expedient so to do. Rule 3 of the Divorce Rules. S.I 249-1 provides for service that service shall be affected in the manner provided for the service of summonses and notices under the Civil Procedure Rules 7 | P a g e THE REPUBLIC OF UGANDA IN THE CHIEF MAGISTRATE’S COURT OF KIRA AT KIRA DIVORCE CAUSE NO. . . . . . ... OF 2021 PHILEMON MUTEBI:::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER VERSUS MARTHA NALUKWAGO:::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT SUMMARY OF EVIDENCE 1. The petitioner shall adduce evidence to show that he is legally married to the respondent and blessed with on child. That on various occasions, the respondent has treated the petitioner with cruelty which forced him to leave the matrimonial home. 2. The petitioner shall also adduce evidence to proof that the respondent has a disease of mind and as such, she lacks capacity to marry. 3. The petitioner shall further proof that he has suffered injuries as a result of the respondent’s actions. LIST OF DOCUMENTS 1. A marriage Certificate 2. Birth certificate of the issues. 3. Wedding photographs. LIST OF WITNESSES 1. Philemon Mutebi 2. Any other with leave of Court. LIST OF AUTHORITIES 1. The Constitution of the Republic of Uganda, 1995 2. The Marriage Act, Cap 251 3. The Divorce Act, 249 4. The Divorce Rules S.I 249-1 5. Relevant Court decisions. Dated at Kira this............day of .............................2021. _______________________________ 10 | P a g e COUNSEL FOR PETITIONER THE REPUBLIC OF UGANDA IN THE CHIEF MAGISTRATE’S COURT OF KIRA AT KIRA DIVORCE CAUSE NO. ...........OF 2021 PHILEMON MUTEBI ::::::::::::::::::::::::::::::::::::::::::::::PETITIONER VERSUS MARTHA NALUKWAGO :::::::::::::::::::::::::::::::::::::::::::::RESPONDENT SUMMONS TO ANSWER A PETITION TO: MARTHA NALUKWAGO WHEREAS the petitioner has petitioned this Court for a dissolution of marriage; YOU ARE hereby summoned to file an answer to the petition in this Court within 15 days from the date of receipt of this summon. TAKE FURTHER NOTICE that in default of doing so, the petition will be heard and determined in your absence. Dated at Kira this.............day of.....................2021. GIVEN under my hand and seal of this ...............day of ................2021 ________________________ MAGISTRATE Part C) What are the rights of the parties in relation to matrimonial property either at dissolution or separation? Matrimonial property is that property that a married couple chooses to call home and such other property that a married couple or either of them contributes to, directly or indirectly and may be registered in joint names.1 The law relating to matrimonial property in Uganda has come a long way. In the past, a woman was regarded as 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 period, matrimonial property was governed by customary law and under this woman could not own property. During the colonial era, courts protected the rights of women in relation to matrimonial property and ownership of land.2 In this period, the law in relation to 1 Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No.10 of 2009) 2 Khadhadiagala, 2002 pg.2 11 | P a g e property took a different position. It was not until the late 1960s that courts favored a more patriarchal vision of family and by 1990s, entrenched in judicial doctrine was a legal presumption that property belongs to the male head of the household.3 There was a radical change in the law relating to matrimonial property in Uganda after the promulgation of the 1995 constitution. The constitution introduced a new principle of law; the equality in marriage principle. Article 31 (1) is to the effect that “men and women are entitled to equal rights in marriage, during marriage and at its dissolution.” The question of rights of parties in a marriage in relation to matrimonial property has been a subject of debate. This is usually contentious at separation and at dissolution of marriage. At separation According to section 4 of the Divorce Act4, a successful petition will earn a complete dissolution of marriage and thereby total severance of the marital relations and obligations between the spouses. While in section 14, only judicial separation achieved which is defined in the Black’s law dictionary as a arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent or by judicial decree. In the case of Kasingye v Kasingye5 it was held that there is no basis for court to make consequential orders with regard to matrimonial property including matrimonial property during a judicial separation. In other words, judicial separation has no effect on matrimonial property as the parties remain legally married.6 However, it affects ownership of property as section 15 is to the effect that when judicial separation judicial separation is decreed, the wife shall from that date be considered an unmarried woman with respect to that property. She can dispose of property which she may acquire or which may come to or devolve upon her. At dissolution In regards to termination of Marriage, Bbosa J in the case of Muwanga v Kintu7 explained that “There seems to be no contention that at the termination of a marriage including cohabitation neither spouse walks out of the marriage empty handed. This is in recognition of the fact that each of the spouses makes a contribution towards acquisition of matrimonial property and this contribution is not necessarily financial.” Not every property acquired by either spouse during the subsistence of the marriage constitutes matrimonial property. In Julius Rwabiumi v Hope Bahimbisomwe8 Kisakye JSC stated that while Article 3 ibid 4 CAP 249 5 Civil Appeal No.096 of 2014 6 Catherine Alak Aleku v Jackson Leku (Divorce Cause No.8 of 2009) 7 High court Divorce Appeal No.135 of 1997 8 S.C Civil Appeal No.10 of 2009 12 | P a g e 2. DECREE ABSOLUTE This is the legal pronouncement that ends a marriage in other words it’s a final order in a divorce cause which actually dissolves the marriage. SECTION 37(2) of the Divorce Act Cap 249 provides that, during that period any person may show cause as to why the decree should not be made absolute by reason of the same having been obtained by collusion, or by reason of material facts not having been brought before the court. Section 37(3) of the Divorce Act Cap 249 provides further that, on cause being so shown the court shall make the decree absolute, or reverse the decree nisi, or require further inquiry, or otherwise deal with the case as justice may demand. However, the petitioner must move court within a reasonable time that the decree nisi be made absolute because failure to do so may lead to dismissal of the petition. Court held in NEOGY V NEOGY (1967) EA 664, that there is no power in Uganda for court to abridge the 6 month period gap provided by the Divorce Act Cap 249 between a decree nisi and the decree absolute. Grounds for awards of decree nisi/absolute In the case of NAMUYIMBWA V DAVID RALPH PACE (DIVORCE CAUSE NO. 14 OF 2017) [2018] UGHCFD 4 (20 March 2018) court suggested that for awards of decree nisi/absolute; There should be evidence that the marriage between the respondent and the petitioner has irretrievably broken down and that a petitioner proves against the respondent him/her;  abandoned and deserted him/her  committed adultery  deprived him/her of conjugal rights  cruelty among others It was held further that the entire matrimonial relations between the parties, including their conduct and personality [the respondent’s conduct] amounts to cruelty and that categorically telling her/him that he/she no longer loves her/him is enough for a decree Enforcement of orders and appeals. Section 38 of the divorce Act provides for enforcement of orders and appeals. 15 | P a g e In regard to enforcement of orders, it’s to the effect that all decrees [decree nisi/absolute] shall be enforced as if they were decrees or orders made by the court in the exercise of its original civil jurisdiction. Appeal on decree absolute SECTION 38[A] of the divorce Act provides that, in suits for dissolution or nullity of marriage a respondent or correspondent not appearing and defending the suit on the occasion of the decree nisi being made shall not appeal against the decree being made absolute, unless the court gives leave to appeal at the time of the decree being made absolute; and In the case of KAYHUL V KAYHUL (DIVORCE CAUSE NO. 123 OF 2016) [2020] UGHCFD 7 (3 JULY 2020) it was quoting Section 38[a] of the divorce Act held that, no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any party who, having had time and opportunity to appeal from the decree nisi, has not appealed from it. 3. CUSTODY OF THE CHILD. Child; A child is defined under ARTICLE 257 (1) c of the constitution of the Republic of Uganda, 1995 and SECTION 3 of the Children Act Cap 59 as amended to mean a person under the age of 18 years. ARTICLE 34 of the Constitution of the Republic of Uganda, 1995, provides for the protection of the rights of children by the state, parent or even the community. ARTICLE 31 (4) of the Constitution of the Republic of Uganda, 1995, provides the rights and duties of the parents to care for and bring up their children. Further, ARTICLE 31(5) of Constitution of the Republic of Uganda, 1995, states that children may not be separated from their families or the person entitles to bring them up against the will of their parents or of those except in accordance with law. Custody; It is worth noting that where the actions of the parents are unbefitting and they feel so tired of one another, the child is always the next and most affected person, and so the parents in dispute would each wish to have the child with them as they believe they are in a better position to care for the child than the other parents, so the law permits either of the parents to apply and take custody of the child. In NAKALULE CHRISTINE V KAKOZA HERBERT (HCCA NO.47 OF 2008), court held that children are at their best where both their parents are together and happy but where the parents can no longer live together then there are certain nitty gritty that must not go unnoticed. SECTION (1)q of the Children Act Cap 59 as amended defines a custodian to mean a person in whose care a child is physically placed. 16 | P a g e Guiding Principle in Grant of Custody; According to SECTION 3 of the Children Act Cap 59 as amended, the welfare of the child is paramount anything that affects the interest of the child must be looked into critically. In NAKAGGWA V KIGGUNDU (1978) HCB 310, court held that in the determination of who should have custody of the child, the paramount consideration is welfare of the child. Court defined Welfare principle to mean “that all circumstances affecting the well being of the child to be taken into account and the court has to do what a wise parent acting for the interest of the child ought to do” SCETION 3(3) of the Children Act Cap 59 as amended highlights the welfare principle as below; a. Ascertainable wishes and feelings of the child b. the child’s physical, emotional, psychological and educational needs c. Health of the child i.e., physical and mental d. Likely effects of any changes e. Child’s sex, age, background and any other circumstances relevant in the matter f. Any harm that the child suffered or is at risk of suffering g. the capacity of the parents, guardian or any other person involved in the care of the child and meeting the needs of that child. Application for Grant of Custody Any person intending to have custody must apply for it to the court with competent jurisdiction, it is not an automatic right that if you are a parent of a child in issue, then you must have custody of the child but it’s rather to the discretion of court to decide so. the procedure for making an application for grant of custody is in accordance with the Children (Family and Children Court) Rules S.I 59-2 whereby Rule 19 (2) and 2 (j) stipulates that an application for a custody order is made to the family and children court supported by a valid affidavit. Rule 19 (3) provides for the form of application as prescribed in Form 1 in the Schedule rules. Who Can Apply for Custody of the Child? From the instant fact, the Child who may be an issue in the Divorce petition is Emmanuel aged 4 years of age. Custody of this child can be granted to a parent i.e., its mother or father or a close relative of the child. Court held in KAGIMU V KAGIMU (2001-2005) 3 HCB 100, that the cardinal principle in determining to whom to grant custody of the child in divorce matters, is the welfare of the child. the court found that the child was six years old and of tender years and the man was not paying her fees or buy food or pay rent and thus it was for the best interest of the child that custody was granted to its mother. 17 | P a g e TYPES OF GUARDIANSHIP 1. Customary Guardianship This is where the child is placed under the care of a person who is the most immediate in their blood relationship with the child, child’s parents or even grandparent or other relatives. the mere fact that a person is related to the child, then the responsibility of the child evolves on them e.g., an uncle or an aunt, brother or sister or grandparent of the child. 2. Legal Guardianship According to SECTION 43 A (1) of the Children Act Cap 59 as amended, the Legal Guardianship of children can be applied for in Uganda by citizens of Uganda. SECTION 43 A (2) stipulates that a person who is not a citizen of Uganda is not eligible to apply for legal guardianship. Forum and Procedure For a legal guardianship This is in accordance with SECTION 43 B of the Children Act Cap 59 as amended which provides for the followings; a. it is by a petition in form 1 of the 3rd schedule to this Act b. It is made by a person above 18 years of age c. to the High Court d. accompanied by a report from the probation and welfare officer 3. Guardianship by agreement This is the kind of guardianship whereby the parent or parents of the child agree with another person related or not necessarily related to that child to take care of them in the circumstances the parents of the child are not in position to look after its wellbeing. Roles of a Guardian The roles/duties of the guardians were held by court in the MATTER OF KEMIGISHA SAVANA KIMBERLY RWABAJUNGU (an infant) (family cause No. 107 of 2014) to include;  A guardian must be a person who is ready to place himself or herself in relation to the child i.e., in Loco Parentis for the purpose of its care and welfare  A guardian should have the children in his or her charge and look after it  A guardian should be a person who can reasonably be expected to take whatever action necessary or desirable on behalf of an infant  A guardian should ensure that the physical wellbeing of the child is cared for and that its legal rights are protected 20 | P a g e  A guardian should be able to exercise power of control over the child 5. MAINTENANCE ORDER In every decision that parents or any other person in proximity makes, must be to the best interest of the child. SECTION 76 of the Children Act Cap 59 as amended provides that a person who has custody of a child may make an order against the father or the mother of the child. This may be made by the mother of the mother of the child, the father of the child or guardian of the child. The child of an understandable years (age) can also make such application SECTION 76(5) of the Children Act Cap 59 as amended provides that an application for a maintenance order shall be made by complaint or oath to a family and children court having jurisdiction in the place where the applicant resides and summons shall be served on the father of the child. SECTION 76(6) of the Children Act Cap 59 as amended requires the court to issue a summons to the father of the child to appear before the court on a day named in the summons Financial capacity of the parties is put into consideration by the court before a maintenance by the court before. In HOFFMAN V HOFFMAN (1970) ES 100, court held that financial superiority is relevant on a maintenance order. SECTION 78 (8) of the Children Act Cap 59 as amended provides that maintenance includes feeding, clothing and general welfare of the child. In MAYAMBALA V MAYAMBALA (HCCA NO. 3 OF 1998), Court held that a parent is legally bound to provide or their children. The court further held in JULIUS CHAMA V SPECIOZA RWALINDA MBABAZI (DIVORCE CAUSE NO.25 OF 2011), that the duty to maintain the children is imposed by law irrespective whether the person is a mother or father, but as long as they are in position to maintain the child, then they are bound by that. 6. ALIMONY Alimony also referred to as spousal support or spousal maintenance, is a legal obligation one spouse has to provide (financial support) to the other during and/or after a legal separation or divorce. Types of Alimony a) Alimony Pendent Elite b) Permanent Alimony 21 | P a g e a) Alimony Pendent Elite SECTION 13 of the Divorce Act dictates that a wife whether or not she has obtained a protective order may apply to court pending suit and court may make such order as it may deem it fit and just except that the order should not exceed 1/5 of the average net income for three years next preceding the date of the order, i.e., alimony pendente lite b) Permanent Alimony SECTION 24 (1) of the Divorce Act sprovide for permanent alimony where the court may on a decree absolute declaring a marriage to be dissolved obtained by a wife, order the husband to secure to the wife such sum of money as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable. Permanent Alimony is made where a decree absolute has been made or when the marriage is dissolved. It can also be granted during Judicial separation. Alimony was well expounded by Justice Stephen Mubiru in AYIKO MAWA SOLOMON V LEKURU ANNET AYIKO. DIVORCE CAUSE NO. 0001 OF 2015 where he held that; Marriage is viewed today as a shared partnership with important economic and non-economic expectations. Alimony conceptualizes spousal support as compensation earned by the economically disadvantaged spouse (normally the wife) through marital investments and as a means of eliminating distorting financial incentives in marriage, as well as a way to relieving financial need. Alimony provides a secondary remedy and is available where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution of the matrimonial property. The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to support herself through appropriate employment are met. It is an order designed to afford economic justice between the parties. Traditionally, SECTION 25 of the Divorce Act provides that alimony is revisable according to changes in income however, a husband has no right to alimony. the court has on several occasions granted alimony to helpless husbands. In DR. SPECIOZA WANDIRA KAZIBWE VS. ENG. CHARLES NSUBUGA KAZIBWE HIGH COURT DIVORCE CAUSE NO.3 OF 2003; Court considered that the defendant had lost his job and was granted alimony. Divorcing couples may come to an agreement on the actual amount and length of time alimony should be paid. The judge will look at a very extensive list of factors when determining if alimony should be awarded. In RUHARA VS RUHARA (1977) HCB 97; one of the considerations the court took in determining the amount/ sum of money to be granted as alimony was the ability to pay and who was dependent on who. Common Grounds for Alimony i) the wife’s status or economic standing ii) Husband’s ability to pay iii) Conduct of the parties 22 | P a g e warden of the approved home, may place the child with a person who is willing to undertake the care and maintenance of the child referred to as the Forster parent. In the Matter of MATHIAS MUTEBI (an infant) (HCT-00-FD-093-2009), court stated that a foster parent is in the category of a guardian. A foster parent has parental responsibility for the child, a guardian is a person who has parental responsibility over a child so a foster parent is also a guardian. Procedure for Foster Care Placements This is governed by the Forster Care Rules; Rule 4, provides for application to foster a child. Any person interested in fostering a child shall complete the application form specified in Form 1 of the Schedule to these Rules and submit it to the district probation and social welfare officer or to the warden of an approved home. Rule 5, Provides for person qualified to foster children 1) the following persons may apply to be foster parents- a) a husband and wife but if a man has more than one wife, the name of the wife who is to be the foster mother shall be clearly stated b) a single woman not below the age of twenty-one or c) a single man not below the age of twenty-one years 2) a single man may not foster a female child under this Act 3) a non-Ugandan citizen residing in Uganda is qualified to apply to foster parents subject to subrule (1) Rule 6, provides before placement (1) A child shall not be placed with a foster parent who is not a relative of the child- a) a probation and social welfare officer have interviewed the prospective foster parents and assessed that he or she is suitable person to foster a child b) a probation and social welfare officer have visited the home of the prospective foster parent and has confirmed in writing that it is likely to meet the requirements of the particular child and that the conditions in it are satisfactory. c) two persons who know the prospective foster parent well have vouched for his or her good character and a suitability to care for the child, and two persons shall be the secretary for children’s affairs of the village local council or village chief d) it has been established from the secretary for the child’s affairs of the council or the person in charge of any government medical units in the area that no person in the household of the prospective foster parent is suffering from any physical or mental illness likely to affect the child adversely. e) it has been established from the children’s affairs or from the offering have been ascertained and have, so far as practical been taken into account. 25 | P a g e Duration SECTION 29 of the Children Act Cap 59 provides that the care order is for a maximum of three years to be reviewed at least once in each year. Further, SECTION 30 states that the duty to enforce the care order shall be vested in the probation and social welfare officer who applies for the order. 8. ORDER FOR DAMAGES The parties can pray to court to make an order for damages in these matrimonial proceedings, a party can be awarded such damages for the inconveniences caused. Damages literary means the money claimed by or order to be paid to a person as compensation for the losses or inconveniences caused. Damages are awarded at the discretion of the court, however ARTICLE 126(2)(c) creates an obligation to the courts to award adequate compensation to the victims of civil wrongs, therefore, the parties in these matrimonial proceedings can seek order for damages and they really have to prove that they indeed had rights which were abused. 9. ORDER FOR COSTS Costs are some of the orders which can be prayed for in respect of matrimonial proceedings, Costs can be defined to mean the expenses and other entitlements of a party to the suit who is entitled to such. Costs are catered for under SECTION 27 of the Civil Procedure Act Cap 71 and the section is to the effect that the costs in all suits are a discretion of the court, this implies that court has such powers to determine whether or not to pass an order for payment of costs. the court held in FIDA & ONYANGO V ATTORNEY GENERAL, that award of cost in this kind of petition is not as of right but rather at the discretion of court. In regard to the facts at hand, the parties can pray to court to order for costs in the matrimonial proceedings. The party must prove through bill of costs that he or she actually incurred such costs and this is further subjected to taxation. NOTE: All the orders above can b prayed for by the parties i.e., MARTHA and MUTEBE on their own behalf and also for the interest of their only child Emmanuel who is aged 4 years old. 26 | P a g e Part E. Brief facts The parties are Muslims and their names are, Ashiraf Mukembo and Fatima Nabutono. They celebrated their marriage at Ghadaffi Mosque Kampala. Ashiraf has information about an extra marital affair by Fatuma. He is tired of their marriage and wants to move on with his life. Issue 1. Whether there are any remedies available to Ashiraf Mukembo and how he can obtain these remedies. Law Applicable 1. The Constitution of the Republic of Uganda, 1995 2. The Marriage and Divorce of Mohammedans Act, Cap 252 3. The Quran 4. Case Law Resolution Issue 1. Article 7 of the Constitution is to the effect that Uganda is a secular state and shall not adopt a state religion. However, Article 29(1) (c) of the Constitution recognizes freedom to practice any religion. The application of Islamic Law in Uganda is evident under Article 129(1) (d) which introduces “Quadi” courts, which courts apply Islamic Law. The Marriage and Divorce of Mohammedans Act Cap 252 offers no remedies or procedures where a parties’ marriage has broken down. Section 2 of the Marriage and Divorce of Mohammedans Act Cap 252 is to the effect that reference should be made to the Quran and Sunnah. According to Sunnah Abu Dawud [Hadith], in the sight of Allah, the most detestable of all lawful things is divorce. Under Islam however, dissolution of marriage or divorce is only permitted if the marriage fails to serve it is objectives or has irretrievably broken down. There are basically two forms of divorce under Islamic Law. a) Extra Judicial Divorces which include; Talaq, which comprises of modes of divorce at the instance of husband. “Khula,” which is divorce at the instance of the wife and third is “Mubarat,” which is mutual consent divorce. The second is the Judicial Divorce. When a man has initiated a divorce, the procedure is called “ talaq.” When a husband accuses his wife of 27 | P a g e h) Must be in a state of purity by which is meant that she should not have had any sexual relations with her husband and should not be menstruating. Therefore, Ashiraf Mukembo can opt for Talaq by pronouncing ‘talaq’ three times to Fatuma Nabutono either orally or in writing. He should do so in the presence of witnesses and when Fatuma is in her purity days. 2) “Li an” This means divorce on oath. It ensues when one of the spouses puts slanderous accusations against another. The wronged party is entitled to sue for divorce which can be granted if the accusation is proved to be true. In Zaffar Hussain v Ummat -Ur -Rahman AIR 1919 All 182, a wife alleged that her husband had stated that she had illicit intercourse with her brother. The court held that a Muslim woman is entitled to bring a suit for divorce and obtain a decree on the ground that the husband charged her falsely with adultery. According to the Quran 4:15, a husband should bring four witnesses to prove his case. If he fails to do so, Procedure The husband should swear four times by God that he speaks the truth and a fifth time that the curse of God be on him if he be a liar. The oath is accompanied by the invocation of the name of Allah and the matter over which the oath is made is not proved except by Allah. In the Quran 24:8-9, if the wife in turn swears four times by God that her husband was telling a lie and on the fifth time invokes the wrath of God upon herself if her husband was speaking the truth a deadlock ensues. The rationale behind this is that one would not swear upon the name of Allah in vain and it is in the Quran 16:19. Both parties having taken an oath in Allah’s name, when it comes to such extremes, it is no longer fit that the parties continue to be husband and wife, the marriage is held by the Qadhi to be dissolved. Therefore, before the Qadhi, Ashiraf should make an oath that Fatuma is having an extra marital affair with another man, if Fatuma also swears on oath denying the allegations, then the Qadhi can declare the marriage dissolved. The remedies above are available to Ashiraf Mukembo and the procedure on how to affect them is also provided. 3) Reconciliation and chastisement. 30 | P a g e Before divorce or any other remedy, Islam advices that all efforts should be made to foster reconciliation. This entails suitable disciplinary action if necessary. The Quran 4:34 provides, as for those women from whom you fear defiance, admonish them, leave them alone in their beds and beat them lightly). If they obey you, seek not an excuse against them. The beating mentioned above should be light and should not exceed the normal chastisement. In Zainabu v Mohamad (Civil State of Muslim Family Justice Application No. 37 of 1997 , the petition for divorce by the wife on grounds of cruelty occasioned by her husband beating her was dismissed because cruelty was not proved. Court held that Islamic Law recognizes chastisement of a wife and she did not sufficiently show that her husband exceeded the limit of chastisement, therefore there was no cause to dissolve the marriage Ashiraf Mukembo can therefore invoke the above. He can admonish his wife, leave her alone in her bed or lightly beat her to ensure that she reforms from her adulterous wife. This remedy is exercised by Ashiraf himself. Alternatively, the Qadhi court can appoint an arbitrator to reconcile the parties giving preference to the parties' close relatives with knowledge of their marital issues as procedure requires. However, where a relationship becomes impossible, Islam does not keep spouses in pain and tension. It therefore allows a couple to part when reconciliation fails. 4) Divorce under the Marriage and Divorce of Mohammedans Act. cap 252 Section 18 of the Marriage and Divorce of Mohammedans Act 252 Provides for the Jurisdiction in divorce cases. The section is to the effect that nothing in the Divorce Act shall authorize the grant of any relief under that Act where the marriage of the parties has been declared valid under this Act; but nothing in this section shall prevent any competent court from granting relief under Mohammedan law; and the High Court and any court to which jurisdiction is specially given by the Minister by statutory instrument shall have jurisdiction for granting that relief. Under Islam, if a husband alleges adultery, this is called “Zina,” he may seek a remedy of divorce and a ground of adultery relied on for the same. It would be upon him to prove his case since false accusation of adultery would not be a ground for dissolution of marriage, as was stated in the case of Tufail Ahmed vs Jamila Khatun. AIR, 1962, All 570. Therefore, this would be the first option. Under Judicial divorce, when the divorce has been pronounced by court, both spouses are required to register under the Marriage and Divorce of Mohammedans Act and this should be done within one month of the pronouncement of the divorce. The Marriage and Divorce of Mohammedans (Jurisdiction in Matrimonial Causes) Instrument. S.I 252-3 under Rule 2 provides for the Jurisdiction in all matrimonial causes. It is to the effect that Jurisdiction in all matrimonial causes under Mohammedan law, where the parties to the matrimonial cause are Africans 31 | P a g e of Uganda, is conferred upon Magistrates Courts presided over by a Chief Magistrate or a Magistrate Grade I. Section 2 of the Marriage and Divorce of Mohammedans Act states that all the marriages and divorces carried out under Mohammedan religion customary amongst the tribe or sect in which marriage or divorce takes place, shall be valid and registered as provided in this Act. Section 3 of the Marriage and Divorce of Mohammedans Act also provides for the power of the minister to appoint registrars, this means any person that the minister deems fit for the purpose of registering marriages and divorce under this Act. This can be the eminent persons like the Imams, “sheik” as Moslem leaders. Section .5(1) (b) (i) The Marriage and Divorce of Mohammedans Act, states that application shall be made within one month from date of marriage/ divorce by the man who effected the divorce. Therefore, in the instant case, it would be prudent for Ashiraf to apply for divorce under this Act stating his reason of adultery on the side of Fatumah. Section 6 The Marriage and Divorce of Mohammedans Act then gives powers to the register upon receipt of the application for divorce and the necessary fees as determined by the minister. The registrar shall then make the necessary inquiry about the parties and further in the case of a person appearing as a guardian or a “vakil”, as per the right of that person to appear. This thus implies that both Ashiraf and Fatuma shall appear and physically be identified by the registrar, like “imam” or “sheik,” upon payment of the necessary fees and where neccesary the guardian of Fatuma shall then be called too. Section 7 The Marriage and Divorce of Mohammedans Act of this Act then provides for power of registration of the divorce if the registrar is satisfied on the above points hence the divorce shall be entered in the appropriate register for divorce in this case. Further section 8 (1) The Marriage and Divorce of Mohammedans Act is to the effect that the entries in the appropriate registers shall be signed by the following persons—in the case of a divorce— (i) other than of the kind known as “Khula,” by the man who has effected the divorce, the witness who identifies him and, if the man is of the “Shiah Sect,” by two witnesses to the divorce being effected; and (ii) of the kind known as “Khula,” by the man and woman, or by her “vakil” if she is a “purdah-nisheen,” parties to the divorce, by the persons identifying the man and woman and if the man is of the “Shiah Sect,” by two witnesses to the divorce being effected. Section (8)(2) The Marriage and Divorce of Mohammedans Act states that the registrar shall then sign all the entries made and Section 9 goes ahead to make copies of the entries to be availed to both parties free from any charge and these copies to be the attested ones. The above position was clearly stated in the case of Hajat Nuriyat Memitebi kulwakiwamuka vs Microfinance Support Centre & Another civil suit No.466/2013(2018) UG. Comm C.82 (9. March.2018) that inter alia the procedure for both marriage and divorce under the Mohammedans Act shall be followed in marriages conducted under the Mohammedan religion. 32 | P a g e