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Five lawyers challenge divorce law in court
Five lawyers have petitioned the Constitutional Court, challenging certain provisions of the divorce law.
What you need to know:
Petition. “Section 8 of the Divorce Act that requires an inquiry into collusion, connivance and condonation before allowing or dismissing a petition for divorce is archaic and is not consonant with the Constitution, where the parties themselves believe that they no longer want to be bound in marriage,” Petitioners
Five lawyers have petitioned the Constitutional Court, challenging certain provisions of the divorce law.
Dr Busingye Kabumba, Mr Nicholas Opiyo, Mr Innocent Ngobi Ndiko, Ms Stella Nakagiri and Mr Isaac Ssali Mugerwa aver that several sections of the Divorce Act are inconsistent with the Constitution, hence the need to strike them down.
Core to their contention is that Section 4 of Divorce Act demands the partner seeking divorce must prove grounds for it.
However, the aggrieved petitioners explain that the aforementioned section is archaic and has not developed consistently with the developments in the Constitution.
“Sections 6, 7, 8, 30, 33 and 38 of the Divorce Act that give discretion to the court to decide whether two consenting adults ought to continue in a marital relationship is an infringement on the constitutionality guaranteed rights under articles 20,21,23, 24, 27 and 31,” reads in part the petition.
It adds: “Section 8 of the Divorce Act that requires an inquiry into collusion, connivance and condonation before allowing or dismissing a petition for divorce is archaic and is not consonant with the Constitution, where the parties themselves believe that they no longer want to be bound in marriage.”
Ms Ndiko, in her affidavit, contends that having handled divorce cases extensively, the practice of demanding that the aggrieved party narrates to court all the traumatising moments in their relationship is inhumane and torturous.
“I strongly believe that marriage is consensual, to which if one or both parties to the marriage want to be out and the same intention is clearly stated or brought to the attention of court with or without admission of any fact that would be providing any ground provided for under Section 4 of the Act, the court should be pleased to let them apart,” she states. Mr Opiyo, in his affidavit, states that marriage and divorce laws in Uganda and many African countries were shaped by laws in England.
He further explains that England has since modified their laws to suit the societal needs, which has not been the case for Uganda.
Justification
“The grounds for divorce under Section 4 of the Divorce Act do not reflect the current realties of marriage in Uganda today. The Divorce Act places unnecessary obstacles in the divorce proceedings and also makes proceedings confrontational. This problem was identified by legislators when they were drafting the Marriage and Divorce Bill of 2009,”Mr Opiyo asserts.
Dr Busingye states that many marriage laws have never been revised by Parliament and only a few provisions have been referred to the Constitutional Court for interpretation.
The petitioners now want court to declare that in divorce proceedings, where parties are not agreeable to continue to live together, the courts should be enjoined to enter a decree Nisi upon receipt of a petition for dissolution of marriage, identification of the parties and a report for a failed mediation and then delve into determination of other consequential reliefs.
They also want court to declare that Sections 15,16 and 18 of the Divorce Act are unconstitutional because they tend to protect only wives.
