Property in Kampala. For property to be termed matrimonial, the couple must have jointly contributed to its acquisition during their marriage. PHOTO/ MICHAEL KAKUMIRIZI
Due to irreconcilable differences, Mr John Waigo Ambayo and Ms Jackline Aserua, dissolved their marriage in 2012.
However, Mr Ambayo was dissatisfied with the court’s decision to award his wife 50 percent of the marital property.
He appealed the decision in the Court of Appeal, arguing that the judge erred in assuming Ms Aserua had contributed to the acquisition of the property because she was his wife.
Such legal battles and the raw sentiments they trigger are countless in the aftermath of divorces.
The law
For Uganda’s case, once all other options have yielded no agreeable results, the courts of law become the final arbiter.
This means the primary laws that govern matrimony in Uganda, namely the Marriage Act, amended in 2005 and 2014, and the Divorce Act of 1904 amended by the Law Revisions (Miscellaneous Amendments) Act of 2023 will be invoked. However, since the Constitution is the supreme law of the land where the Marriage Act derives its legitimacy, Article 31(1) of the Constitution states that men and women of 18 years and above have the right to marry and found a family. They are entitled to equal rights in marriage and at its dissolution.
Fairness
According to Mr Michael Busingye, of Prism Advocates, courts interpreted the law to mean that even sharing property at dissolution of the marriage should be on an equal basis.
There is a precedent. In Kagga vs Kagga, High Court Divorce Cause Number 11 of 2005, the court held that when distributing the property of a divorced couple, it is immaterial that one of the spouses was not financially endowed as the other, and that the contribution of the wife was no less significant.
Counsel Andrew Kakaire, of Skaar Advocates, says the law took into account that the role of women such as taking care of the children contributes to their husband’s productivity.
Contestation and the grey areas
However, the law does not mandate that property should be shared in half in the event of divorce because of the changing times when a woman can also productively create wealth of her own.
“Previously, in the event of a divorce, whether the property was only registered in the husband’s name, the woman had to get a share of it. However, that was contested and the courts decided that because society has changed as evidenced by more educated and working women, sharing doesn’t have to be based on 50-50,” he says.
As a result, every case is determined according to the facts surrounding it. For instance, the court recognises the property that each of the parties had before they got into the marriage. Additionally, not all property gained during marriage constitutes matrimonial property which can be shared equally.
Counsel Kakaire adds that the court will be reluctant to deal with property inherited from family members, even though acquired when one is married.
“It is naturally understood that the property is held in trust and ownership is consanguineous in nature,” he says.
In another precedent, Counsel Busingye says the Supreme Court in Rwabinumi Julius vs Hope Bahimbisomwe, Civil Appeal Number 10 of 2009 noted that Article 31(1) of the Constitution talks about equal treatment in marriage and at its dissolution. But it does not amend Article 26(1) which states that a person has a right to own property either individually or in association with others. And that property rights are not passed merely by one person marrying another.
Justice Esther Kitimbo Kisaakye, in Julius Rwabinumi v. Hope Bahimbisomwe, S.C. Civil Appeal No.10 of 2009 stated that equal sharing in property in the event of a divorce wasn’t expressly stated so by the framers of the Constitution.
She said: “While I agree that Article 31 (1) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or 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.....
She continued: “The Constitution of Uganda (1995), while recognising the right to equality of men and women in marriage and its dissolution, also reserved the constitutional right of individuals, be they married or not to own property either individually or in association with others under Article 26 (1) of the Constitution of Uganda (1995).”
This, she says, means even in marriage, the right to own property individually is preserved by the Constitution as is the right of an individual to own property in association with others who may include a spouse, children, siblings or business partners. In this case, for property to be termed matrimonial, the couple must have jointly contributed to its acquisition during their marriage.
Counsel Busingye says there have been several grey areas in dealing with property sharing upon divorce. One was the Rwabinumi case where the judge, in her concluding remarks, appealed to parliament to enact a law that clearly defines what constitutes matrimonial property as opposed to individually held property. In another case involving Mayambala vs Mayambala, High Court Divorce Cause No.3 of 1988, the court awarded 70 percent to the wife as her interest in matrimonial property.
Watch out
Counsel Kakaire says these are some things many people ignore, yet complicate matters in the event of a divorce:
• If your spouse gives you property, such as a parcel of land or a car, see to it that it is in your name. Do not build on clan land as such land can never be shared in the event of a divorce. It falls under consanguinity property.
• Understand how the property was attained and established in the matrimonial property. According to Counsel Balungi, ensure that the property is registered in both names if acquired over the matrimonial period.
“Know the location of the acquired land, look at the land transfer forms and be part of the transaction process.
• Involving a legal person in establishing how the property was attained could help you establish what makes up matrimonial and exclusively individually owned property,” Counsel Kakaire says.
“Marriage is entered as a sacrament. But when it gets to court, it becomes a battleground of evidence, especially in property sharing,” Counsel Balungi says.
