When there is no just cause for barriers: why the Marriage and Divorce Bill No. 19 of 2009 should be passed the way it is; an analysis of the property, cohabitation and Conjugal Rights clauses, a case for Uganda.

Abstract

The Marriage and Divorce Bill has brought out a number of controversies especially in relation to matters to do with succession. It is in fact viewed by some members as one step towards the end of domestic violence in Uganda even though we have the Domestic Violence Act in place. Studies show that at least 60% of Ugandan women have experienced domestic violence and in certain areas of Uganda, percentages of women who have experienced violence are as high as over 70%. Despite the a fore mentioned, some clusters of the Ugandan populace agree with the Bill. Other clusters either do not agree with some of its provisions or they partially agree with some of the provisions while refuting the others. It has been immensely viewed as a gender constructed mechanisms geared towards the promotion of rights of women at the cost or expense of their male counterparts, the men. The Bill has thus for years not been passed by Parliament as most male Members of Parliament have disagreed with it on property and cohabitation provisions. This article looks into some of the justifications from an analytical perspective as to why the Bill should be passed into law in its current form. It also briefly considers some recommendations that could be taken on for a better and acceptable law for all Ugandans.

1.    Introduction

The laws that relate to Marriage and Divorce have for over four decades brought endless debates as to what the true status of the law should be.[1] It is in fact reported that it has been tabled for over forty seven years of fruitless effort.[2] It is also on customary record that society has constructed property ownership to be a benefit of men only while the women do not own property. Where they have property, it is usually taken to be held by her in trust for the man or her husband. This is a battle that has not yielded any victory and at most times, attempts have been faced with the agony of defeat similar to two teams taking part in a football match where one wins and thus rejoices in thrills of victory while the other weeps in the agony of defeat. The victors have always been the men while the losers have always been the women.

The gender constructions of our societies have always made generations to embrace certain practices as the way of life.[3] They take it as the order within which things should be done. For instance, women have always been viewed as property and therefore owned by individuals. The other properties were at the same time owned by men and women would not own property because they were regarded as property belonging to men. Unfortunately, this mentality continues to exist even today amongst some members of the society in which we live. This is very pronounced in the African setting where gender and social constructions continue to exist with views that women are not any better than men. Families are happier to get male children and the reverse for the female children is true.

The issue of inheritance has also immensely featured when it comes to marriage especially at the point when marriage gets sour. The constitution of the Republic of Uganda is the supreme law of the land and provides among others that; it is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. [4] The constitution further provides that if any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.[5] The constitution thus is the only recourse of reference where laws come into contention as to their legality. Definitely, the constitution has been increasingly referred to when it comes to issues regarding equality of men and women in Uganda.

2.    The marriage and Divorce Bill; the Purpose

According to the Bill, the purpose is clearly stated out in the Long title of the Bill. Thus is an act 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.[6]

 

Under Article 21 of the constitution, parliament is empowered to make laws that are aimed at redressing social, economic, educational or other imbalance in society.[7] Further, affirmative action may be taken for purposes of redressing imbalance in society.[8] It is also further provided that women shall have the right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom.[9] These provisions are given validation when it comes to enforcement of human rights and freedoms where the constitution provides that any person, who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.[10]

 

It would therefore follow that all persons, men and women have the option of getting redress where their rights are violated. The Marriage and Divorce Bill does not specify who in a cohabitation relationship for example is protected. However, the Bill aims at protecting both men and women in this relationship and property acquired.

 

In the Memorandum of the Bill, it is stated that the Bill is reform and consolidates the law relating to marriage, separation and divorce and to provide inter alia for to provide for the types of recognized marriages in Uganda, marital rights and duties, recognition of cohabitation in relation to property rights. It is further stated under paragraph 2 of the memorandum that The Bill is the product of a comprehensive study by the Uganda Law Reform Commission in which all relevant stakeholders were consulted and several seminars and workshops held, and which takes full account of previous similar studies carried out in Uganda all of which are aimed at promoting social justice in line with the Constitution and international legal obligations of Uganda.

 

It is thus true that the Bill was not formulated by one individual but was a joint effort of many stake holders who found it necessary to further the protection of human rights of the vulnerable men and women of this country. It is also notable that this Bill is not discriminative in its provisions and both men and women have equal rights if it is passed into law. There would is therefore little basis for opposing the bill on grounds of carrying out more consultations. Enough consultations have been made and further shelving for consultation is delay of justice which is transfigured in denial of justice.

 

3.    Marriage or cohabitation, where is the difference?

The constitution of Uganda provides that a man and woman are entitled to marry and found a family once they are eighteen years of age.[11] They are further to equal rights at and in marriage, during marriage and at its dissolution.[12] The parliament under the same article is also empowered to make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their children.[13] The constitution further provides under article 21 that all persons are equal and shall enjoy equal protection of the law. It is also provided inter alia that a person shall not be discriminated against on the ground of sex.[14] The constitution further in the bid to promote equality of human rights for both men and women prohibits any Laws, cultures, customs and traditions which are against the dignity, welfare or interest of women.[15]

 

 It was earlier accepted that only married women were entitled to a share in the marital property where the husband died and left them behind. Children on the other hand whether got in wedlock or from cohabitation were entitled to a share in the estate of their deceased father. The mother of the children if not wedded to the man was not entitled to any share in the property or the estate of her late husband. For instance, these two cases show this imbalance.

 

In Christine Male & Anor v Namanda & Anor, the first plaintiff was the widow of the deceased and they were validly married.  The first defendant had never been the wife of the deceased although she had four children with him.  Consequently, the only person who could apply for letters of administration was the first plaintiff under the Succession Act, as amended. It was held that the mere fact that somebody had children with a woman does not entitle her to have a share in the estate of the deceased.[16]  On the other hand, in the case of Kajubi v Kabali  court took judicial notice of the fact that getting children out of wedlock was so common and widespread that discrimination between legitimate and illegitimate children would be detrimental to a larger section of the community and thus contrary to natural justice.[17]

It would then follow that while children were valued be it that they were got in wedlock or outside wedlock, they were accepted as having an entitlement to the estate of their late father. The big question that would arise is; did the man get the children from an animal, a tree or anything else but a human being? A woman, who offered her life to bear children for that man. An outright interpretation would spot out injustice towards the woman.

For benefit of doubt, there is a difference in the two kinds of relationships. Church marriage is an agreement between a man and a woman which imposes rights and duties between them and creates a recognized relationship governed by the law.[18] This marriage can be either civil or church, which is potentially monogamous, Islamic or customary which are potentially polygamous or marriages that that are celebrated in accordance to Hinduism or the African traditional marriage. Cohabitation on the other hand is merely based on the consent of parties, the man and woman to live together. It is usually customarily viewed as a customary marriage. There are usually no formal arrangements for this kind of relationship but sometimes the man’s family usually makes it known to the family of the woman after which consent is given to the man.

What is striking common about the two relationships is that there is always the element of consent of both parties as requires by the constitution of the Republic of Uganda under articles 31. It is also true that the relationship is usually entered into voluntarily with the intention of both parties to stay together for life. The relation is also usually heterosexual in nature. From the physical perception and general analysis, the two are not different but it is the law that creates the difference by providing for legal steps within which a marriage shall be regarded a marriage under the laws of Uganda but in practice; the two are not any much different. After all according to the Uganda Bureau of statistics (2002), only 20% of the couples in Uganda are legally married and yet the majority 60% are traditionally married. They are literally not even customary married but are living in relationships that we regard as those of cohabitation.

4.    Cohabitation and property sharing; a justification

The Bill under clause 3 defines cohabitation as meaning a man and a woman living together as husband and wife. Under a legally recognized marriage, the spouses are also referred to as husband and wife. This directly infers that the rights of both parties in these types of relationships are equal for reasons that they have agreed to live together in a peaceful and harmonious manner.

 

Under the Bill, Part VII on Matrimonial property Rights from clause 115 to clause 133, Part IX covering clauses 134 to 161 providing for cases of breakdown of marriage in relation to matrimonial property, are clear and in no case would they call for alarm in as far as cohabitation, marriage and property sharing are concerned.

 

The presumption is that once two parties, a man and a woman agree to live together; it is assumed that they are in agreement and they intend to enjoy equal rights. As earlier noted, there is not any much difference in the way spouses lead their lives be it that they are legally married or in cohabitation. Further, when the parties start living together, certain obligations arise and each one of them has duties they perform as a family. They are a family because there is no distinction in definition of a family, be it one founded by marriage or cohabitation.  A family is defined as the basic social unit of society constituted by at least two people whose relationship may fall in one of three categories of; Husband and wife; Persons living together in a manner similar to that of spouses as recognized by English law or Persons living together whether related by blood or marriage.[19]

The two are therefore spouses who should be entitled in equal of all the rights that accrue to them in their marital arrangement. This position can be best explained by the case of Dunn v Dunn where Denning L.J held: There is no proposition in law that the husband has the right to say where the matrimonial home should be.[20]  It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage-earner and has to live near his work.  It is not a proposition which applies in all cases.  The decision where the home should be is one affecting both parties and their children, and it is the duty of the parties to decide it by agreement, by give and take, and not by the imposition of the will of one over the other.  Each is entitled to an equal voice in the ordering of the affairs which are their common concern.  Neither has a casting vote, though, to be sure, they should try so to arrange their affairs that they should spend their time together as a family and not apart.[21] 

Even then, all efforts aimed at obstructing the Bill from being passed into law is majorly that of men. Women are quite disadvantaged when it comes to family organization and upbringing. They usually play the productive role, they carry children for nine months in their wombs and when children are many in the family, which means a longer period of carrying children who are not hers alone but for her and her husband. She is usually denied the right of owning the children as the presumption is that the children belong to the man. She cooks food at home for the family and performs all activities that are necessary for the healthy upbringing of the family. She cleans the compound and ensures that the husband always has clean office wear every morning so that he appears at office in a presentable manner. She also gives moral and psychological support to the husband. In the traditional settings, it is usually the woman who wakes up very early in the morning, prepares the children for school and goes to the garden to do cultivation.[22] She looks for food that the family is to feed on for the day and she ensures that the home is habitable. To the contrary, the man usually gets up from bed only to go drinking alcohol with his male friends.

Thus to state otherwise in regard to equal sharing of property would be to deny women an equal right. It would also mean that all the work that the woman does is not recognized and all her efforts are rendered useless. For this reason, I would find no problem with the Bill being passed with the provisions on cohabitation and property sharing intact. Save for clause 155 (3) (a) and (h) on the court having regard to the length of marriage or period of cohabitation when dividing property between the spouses.

The problem comes in when one has to determine what the period really is and what the real length of the period is to be taken. This tricky situation can be seen from the Kenyan case of R v. Peter s/o Mikhayo the interesting issue was that of the period of cohabitation, for how long should you cohabit for this presumption to come into place?  Is it one year or 10 months? In this case, the accused cohabited with a lady for a period of between 4 and 8 months, then one day he found his lady performing a sexual act in the bush with a man and proceeded to kill the man.  In his defence on charge of murder, he said that the lady was his wife and he had been provoked to kill the man.  The court had to consider whether that period of cohabitation was long enough to trigger a presumption of marriage.  Again this is one of the case relied on customary law and it held that under Customary law, that period was enough and in fact stated that under customary law, the moment you start cohabiting the presumption is triggered.[23]

 

It has further been noted in Karanja v Karanja by the court that the presumption of marriage was not new in Kenya, the presumption arising from long cohabitation and repute between a man and a woman who have the capacity to marry and have consented to do so.  He clarified that before a presumption of marriage can arise, a party needs to establish long cohabitation and acts of general repute and also that the long cohabitation is not mere friendship or that the woman is not a mere concubine.  The union or association must have crystallized into what is generally recognizable as a marriage.  However, the judges added that since the presumption is in the nature of an assumption, it is not imperative that certain customary rites of marriage should be performed before the presumption can arise.[24] 

It is therefore important that the law spells out the specific period that will be regarded as that worthwhile determined by the court. Contrary to this however, I constrained to opine that the period should be reasonable in a manner that once the parties agree to live together, then it is sufficient. The contributions however would have to be considered in some circumstances as the Bill spells it out.

It is not in doubt and nobody can argue with me in line withthe fact that once a woman loses a husband whether they were married or not that society will actually perceive that woman as a widow even if their relationship had only lasted for an hour. Then why not give women in cohabitation full recognition as wives of the men they are cohabiting with. It is truly unjust to hold them otherwise even when they are faced with grief. In the case of Kemutongo v Katuramu that the widow, or a surviving spouse is the most appropriate person to apply for letters of administration.[25] 

It must be noted that proof of a valid marriage must be adduced for purposes of granting a widow letters of administration. This is fortified by Ernesti Babumba v Nakasi Kizito where the deceased was not married to any woman customarily or otherwise, but he was survived by nine children whom he got from six different women friends.  The defendant, one of the six friends had also mothered two issues.[26]  Unfortunately, no evidence was adduced to show that she was married to the deceased either customarily or at all, or that she was cohabiting with the deceased at the time of his death.  Having children by the deceased was held inadequate to confer on the woman widowhood.[27]  In the absence of the above type of evidence, the defendant’s issue of widowhood was not proved; and therefore her claim must fail in the circumstances.

There must be an end to such injustices and the only hope that Ugandans can depend on now is the enactment of the Marriage and Divorce Bill in the status it is in regarding the provisions on cohabitation and marital property. If even those who still believe in customs of widow inheritance like the the Iteso, who call it “airum aberu” meaning taking over a widow, while the Bakiga capture this traditional concept in the form of “Okuhungura efaakazi” and among the Lugbara its called “Okoviza” meaning the widow is brought back into the clan want to take over women who have lost their spouses even when not wedded. Then why not have them have equal share in the properties that they have in their marriage or cohabiting relationship.

This must however be contrasted with Article 37 of the constitution of Uganda (1995) grants right to belong to , enjoy, practice,  profess, maintain and promote any culture, cultural institution, language, tradition creed or religion in community with others although this must be qualified against Article 2(2) and Article 33(6) which talks about the supremacy of the constitution and any other custom or law in consistent there in with it being void, and the rights of women in respect to culture welfare or interest respectively.

In my view, I find it relevant to assert that there should really be no such thing as denial of rights to certain individuals of the community. We are all equal and all of us should be accorded equality before the law. Properties should therefore be shared equally.

5.    Marital Rape; Dream or Reality

Clause 114 of the Bill provides for conjugal rights and indeed all spouses have a right to enjoyment of conjugal rights. The problem that may arise however is within the fact that the Bill provides that under clause 114 (2) (d) where a spouse has sexual intercourse with his or her partner with force where there is reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological injury or harm, then that partner is to be subjected to criminal action and may also be liable in civil action.

There is I think the need to clarify on this provision because there is no clear definition of this physical or psychological injury or harm. It is otherwise potentially a source of family conflicts that can never be brought to an end. Indeed some members of the community have stated that it becomes so unruly for one to take their partner to court. They see it as a fact of problem aggravation. Perhaps a further look into this provision could shed more light on the intent of this provision.

Conclusion

The marriage and Divorce Bill is very important for Ugandans and has come at a time when it has been long overdue. The people need it and it is a product of wide and massive consultation. There is need to have joint effort towards the enactment of this bill as this will bridge the justice gaps to bring to  reach  uniform justice for both men and women in Uganda. Men should therefore fully support this Bill as they are working towards the good of their future daughters and not for themselves.



[2] Ibid.

[4] The Constitution of the Republic of Uganda, 1995 as amended article 2 (1)

[5]Ibid clause (2)

[6] The Marriage and Divorce Bill No. 19 of 2009, the long Title; This Bill can also be found at http://ulaug.org/new/wp-content/uploads/MARRIAGE-AND-DIVORCE-BILL-Bill_No._19_of_20091.pdf

[7] Supra note 4 article 21 (4) (a)

[8] Ibid article 32 (1)

[9]Ibid article 33 (5)

[10]Ibid article 50 (1)

[11] Ibid article 31 (1) and (a)

[12]Ibid article 31 (1) (b)

[13]Ibid sub article (2)

[14] Supra note 4 article 21 (2)

[15] Ibid article 32 (2).

[16]  [1982] HCB 140

[17] [1944] EACA 34,36

[18] See for instance Hyde v Hyde (1886) [L.R.] 1 P. & D. 130

[19] See BROMLEY’S Family Law, 8th Edition

[20]  [1948] 2 All ER 822; see also Mansey v Mansey [1940] 2 All ER 424

[21]Ibid.

[22] Further reference on the role of the wife in a home can be read form the case of Julius Rwabunumi v Hope Bahimbisomwe  Civil Appeal No.30 of 2007 arising from High Court Divorce Cause No.4 of 2004. In the Civil Appeal case, the Court held that that Art.31 of the Constitution forms the constitutional basis for the rights of partners in any legal marriage in Uganda (i.e. equality) and that property acquired during marriage constitutes matrimonial property and it must be shared equally regardless of the contributions.  It would be submitted that instead of entitling widows (or widowers in case the law equally applies to intestate females) – a mere portion out of 100% of the property of the deceased (excepting the principle residential holding); they should actually be entitled to 50% of such property and the residue should be distributed among the other surviving members, regardless of their composition.  This would apply the principle of equal rights even at dissolution of marriage by death; and would favor widow(er)s per their due entitlement as beneficiaries. 

 

[23] See http://law256.wordpress.com/2012/02/07/35/ accessed13th March 2013 at 1154 Hours.

[24][2009] KLR www.kenyalaw.org, Court of Appeal at Nairobi, Judges R.S.C. Omolo, P.N. Waki & D.K.S. Aganyanya JJA, February 20, 2009

[25] [1992] H.C.B. 155

[26](1992) II KALR 75 or CS 173 of 1985

[27]Ibid.

 

Edrine Wanyama Post Graduate Diploma in Legal Practice, Law Development  Centre, Kampala- Uganda Bachelor of Laws (LLB) Makerere University, Kampala-  Uganda

Edrine Wanyama
Post Graduate Diploma in Legal Practice, Law Development Centre, Kampala- Uganda
Bachelor of Laws (LLB) Makerere University, Kampala- Uganda

Phone Contacts: +256(0)782058298, +256(0)702058298, +256(0)716058298, +256(0)792058298Email:                  edrinewanyama@gmail.com, drnwanyama@yahoo.com

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