SIMPLE GUIDE TO DIVORCE AND DISTRIBUTION OF MATRIMONIAL PROPERTY IN UGANDA

What is divorce?

ANGUALIA BUSIKU & CO. ADVOCATES

BMK House, 4th Floor, Suite No.402, Plot 4-5 Nyabong Road, (Hotel Africana), P.O.Box 27689 Kampala. Email: angualia@lawyers-uganda.com website: lawyers-uganda.com

Contributors:

KASINGYE STUART

Email: kentembwe@gmail.com

kasingye@lawyers-uganda.com

Telephone: 0785348742

               ANGUALIA DANIEL

angualia@lawyers-uganda.com

dangualia@yahoo.com

Telephone : +256 774 477656

NINSIIMA IRENE

Email: nguairene@yahoo.com

ninsiima@lawyers-uganda.com

Telephone: 0752024021

Simply put, divorce is the legal process through which marriage is brou ght to an end. A court will need to first ascertain if the parties seeking divorce before it are indeed married. Not every association between a man and woman means marriage. For example cohabitation regardless of the duration of time does not amount to marriage. It does not matter how many children or grandchildren you have together as a man and a

woman.

Who can file for divorce in Uganda?

A wife or husband can file or petition court for divorce and ask court to dissolve the marriage. Divorce application or petition is filed in a court with jurisdiction where the petitioner or Respondent resides. Petitioner is the person who files for the divorce while the Respondent is the person against whom the divorce is filed. Where all parties to the divorce are African, then the divorce may be filed in a Chief Magistrate’s court in the area where the Petitioner or Respondent resides. Where one of the parties to the divorce/ marriage is not African, then the petition must be filed in the High Court. Note that any person whether citizen or non citizen can file for divorce in the High Court of Uganda as long as the person is a resident in Uganda.

What is marriage?

Court will need to be convinced that the person seeking divorce is indeed married. There can never be divorce if there was no marriage in the first place. Marriage can therefore be defined as a legally or formally recognized union of a man and a woman (or women). Uganda has five types of marriages that are recognized and they include; (i) Customary marriage, (ii)Mohammedan marriage (muslim marriage), (iii) Church marriage (conducted in church),  (iv) Civil marriage which is conducted before the Registrar and (v) Hindu marriage which is between Indians of the Hindu faith.

What are the acceptable reasons for divorce?

divorce may be; witchcraft or barrenness.

Having understood the nature of marriage before court, the next step will be to ascertain the reasons for divorce otherwise known as grounds for divorce. The State has a duty to protect marriages. You don’t therefore rush to court to divorce for any reason. The reasons taking you to court for divorce must be only those reasons provided by the law. With respect to civil and or church marriage, the legal grounds or reasons for divorce are; (i) adultery, (ii) cruelty and or (iii) desertion for two or more years. The person seeking divorce has the duty to prove any of the grounds for divorce. With respect to other marriage types, the requirements or reason and or ground for divorce vary from marriage to marriage or custom to custom. For example in customary marriage, the ground or reason for

Can denial of sex in marriage amount to ground for divorce?

Denial sex of in the marriage by one partner otherwise known as conjugal rights which accrue to the parties by virtue of marriage can amount to cruelty which is itself a ground for divorce. It is important to note that cruelty goes beyond violent physical behavior. Cruelty can also be psychological and emotional. Refusal to talk to your partner for unreasonable or verbal abuse amounts to cruelty.

Court will issue summons requiring the Respondent to either file a defence or appear in court on a day specified in the summon. The court summon must be served on the Respondent within twenty one days from the date it is issued by court. The Respondent shall upon receipt of the court summon together with the divorce petition file a formal response known as an answer to the petition. The answer to the petition

Can Irreconcilable difference or irretrievable break down of marriage be aground for divorce?

In some cases, the Petitioner will indicate to a lawyer that his or her reasons for divorce do not fit within the three known grounds. That they cannot relate as husband and wife due to irreconcilable differences. What then is irretrievable break down of marriage or Irreconcilable difference?. Irretrievable breakdown of marriage may be defined as failure in the matrimonial relationship, or such circumstances adverse to that relationship that no reasonable probability remains of the spouses again living together as husband and wife for mutual and support.

Irreconcilable difference or irretrievable break down of marriage in itself is not a ground for divorce in Uganda as of 23rd January 2020. Previously, courts would base on it as a ground to dissolve a marriage. The situation changed with the decision in court of Appeal Civil Appeal No. 160 of 2018, Rebecca Nagidde versus Charles Steven Mwasa. Among other things court stated that; “Irreconcilable difference is a ground for divorce in many jurisdictions but until the Divorce Act is amended or anew law promulgated that sets up irreconcilable difference as a ground for divorce, it is not the law of this er attractive it might be”

However, depending on how the couple can explain the way the marriage has irretrievable break down it may be classified as cruelty since cruelty goes beyond violent physical behavior. It includes psychological and emotional cruelty.

A person considering divorce needs to engage the services of a lawyer who is experienced in divorce matters in Uganda. The lawyer will advise you if you have grounds for divorce or if your circumstances can generally be interpreted as falling within any of the three ground of divorce.

You have filed your divorce petition/ application. What next ? A Petition is a document stating the petitioner’s claim and or grounds for divorce against the Respondent. It has to state what the person seeking for divorce wishes to get from court. In a situation where the parties have children and jointly owned property, the petition can also include request for orders for; distribution of jointly owned property, custody of the minor children and maintenance for the children.

In divorce cases, distribution of jointly owned property, cash in jointly owned bank accounts and questions relating to child custody are usually contentious. The petition must therefore be drafted properly and supported with documents justifying the claims. Where you are able, it is better to engage services of an experienced divorce lawyer for representation so as to make sure that your interests are catered for throughout the should contain the defence and or claims of the Respondent against the divorce Petition. If the Respondent wishes to be divorced, he or she can also file what is called cross divorce petition. The cross divorce petition has to be filed together with answer to the Petition. The Respondent has to state the grounds on which he or she seeks divorce. The cross petition and answer to the petition has to be served on the Petitioner  by the respondent.

Before court can proceed with hearing the divorce petition and cross petition if any, the parties are referred for mediation. The mediation is intended to give the parties chance to resolve their issue without court intervention. The terms of the mediation is then registered as court decision. If the mediation fails, the petitioner gets a hearing date from court. He or she serves the other with a document called hearing notice wherein the date and time of hearing of the case is indicated. On the hearing date, the court will receive evidence from the petitioner in respect to his/her petition and the respondent in respect to his/her answer to the petition. After hearing from both parties or from only the petitioner where the respondent does not file an answer in reply, court will go ahead to grant a decree nisi. Decree nisi is the initial divorce order issued to the person seeking for divorce. The decree nisi is given for the first six months during which time, the parties can reconcile and resume their marriage. During the six months period, the marriage is still on and no party to the marriage can legally con tract another marriage.

If after six months from the date on which the decree Nisi order was granted none of the parties has challenged the divorce petition and the parties have not reconciled, the petitioner applies to court for final divorce order called decree absolute. The final order brings the marriage to an end. The parties to the marriage are free to remarry. If they decide to fall in love, they will have to remarry themselves afresh.

MATRIMONIAL PROPERTY AND ITS DISTRIBUTION

The decision to divorce is one that a couple never finds easy to make. It becomes more difficult if the parties acquired properties during their marriage and have not agreed on how to distribute such properties upon divorce.  What should be known is that not every property acquired either individually or jointly before or during the subsistence of marriage constitutes matrimonial property to be shared equally upon divorce.

What then is Matrimonial Property?

Matrimonial property is understood differently by different people. As the Supreme Court observed in the case of Rwabinumi versus Bahimbisomwe in SCCA No. 10 of 2009 “matrimonial property is understood differently by different people. There is always property which the couple chose to call home.

There may be property which may be acquired separately by.

each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these should be considered differently. The property to which each spouse should be entitled is that property which parties chose to call home and which they jointly contribute to”. Thus for any property to constitute matrimonial property, the couple must have contributed to the acquisition of the property during their marriage

Direct and Indirect Contribution

The contribution by the spouse does not necessarily has to be financial contribution. Our Courts have recognized the un monetized contribution of spouses and established a principle recognizing each spouse’s contribution to acquisition of property and this contribution may be direct, where the contribution is monetary or indirect, where a spouse offers domestic services and it is immaterial that one of the spouses was not financially endowed.

Who then should stay in the matrimonial house upon divorce? Both in law and in most Uganda customs the husband has a legal duty to provide a home for his wife and children. He cannot take this facility from them because it is their right and he becomes a trustee for and on behalf of the wife and the children. A wife is thus entitled to be provided a house by her husband and she can obtain an injunction to stop him from interfering with her right. Where the wife is the innocent party in matters of divorce or judicial separation court may order that she remains in the matrimonial home.  The age of children may also influence court’s decision on who to stay in the matrimonial home with the children. It is preferred that children of tender age be raised by their mother. It means that if the mother has custody of the children, she will most likely keep the matrimonial home so as to enhance the welfare of the chil dren.

Distribution of Matrimonial Properties upon divorce

The guiding principle in determining the share of the parties to the marriage is the tangible financial contribution, direct or indirect, which is clearly provable towards the acquisition of the property in dispute.  For a spouse to be entitled to a share of the property acquired by or registered in the name of the other, he or she has to prove financial or monetary contribution towards the acquisition of the property. Unquantifiable non-monetary contribution by a spouse will not entitle a spouse to a share of property. The spouse who claims a share in any property acquired during marriage must prove the extent of his or her contribution towards the acquisition of the prop erty in dispute.

Court will consider properties acquired during the subsistence of the marriage, evidence of contribution both direct and indirect, the period for which marriage of the parties subsisted, life to which the spouse is accustomed to in order to determine the share he or she is entitled.  A spouse is only entitled to that part of matrimonial property which she can prove that she contributed to the acquisition thereof, by way of financial contribution or otherwise. The beneficial share of each spouse ultimately depends on their proven respective proportions of financial contributions either directly or indirect towards the  acquisition of the property. Whether the spouses contributing to