Marriage is a ceremony by which a man and a woman of eighteen years and above become husband and wife and are entitled to equal rights. In Uganda only marriages constituting of man and woman are accepted unlike other jurisdictions where same sex marriages are allowed. This marriage must be recognized by the law either through solemnization of church or mosque, or through celebration of the African customs to which one of the spouses is a party and through civil means by way of a registrar of marriages. So matrimonial property cannot accrue if the marriage is not recognized by the law.
Matrimonial property refers to the property acquired by a couple during the marriage which is subject to division upon divorce or separation. The concept has become increasingly important due to rising cases of divorce and separation and disputes over ownership. Ugandan law recognizes the rights of spouses in matrimonial property and it is regulated by different legal instruments.
Article 31(1)(b) of the 1995 constitution provides that men and women of eighteen years have the right to marry and found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. The Supreme court of Uganda further held in the case of Rwabinumi V Hope Bahimbisomwe Civil Appeal No 10 of 2009 that the constitution of Uganda while recognizing the right to equality of men and women in marriage and at its dissolution, also reserved the constitutional right of individuals be they married or not to own property either individually or in association with others who may include a spouse, children, or even business partners and this is enjoined in Article 26 of the 1995 constitution of the Republic of Uganda (as amended).
Furthermore, this article guarantees people from the deprivation of property except where the acquisition of the property is necessary for public use, public safety, public health, public morality, public order or in the interest of defence and this is subject to fair and adequate compensation. Article 21 provides for equality and freedom from discrimination, all persons are equal before the law regardless of race, sex colour and gender, ethnic origin, religion, political or economic standing. Article 33 also guarantees women equal rights with men.
Because during the pre-colonial era marriage and matrimonial property were governed by customary law which customary law depended on the different customs of the different societies in Uganda, the property was basically owned by a man so, a woman could hardly claim a thing upon divorce. Justice Okumu Wengi argues that this was because women were considered a source of labour and divorce meant that there was no more labour provided. Section 40 of the Land Act cap 236 provides for restrictions over family land a person shall not sell, exchange, transfer or lease any family land, enter into any contract for the sale or lease or any other transaction concerning family land except with prior consent of the other spouse. Section 5 of the Mortgage Act provides that a mortgage of a matrimonial home is valid if a form used in applying for the mortgage is signed by the mortgagor and the spouse of the mortgagor living in the matrimonial home. Where property is on threat of being sold off or pledged as a security for a loan without the other spouses consent, such a spouse may lodge a spousal caveat on the certificate of title of such property.
Article 23 of the International Covenants on Civil and Political Rights (ICCPR) places a responsibility on the state to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Additionally, Article 16(c) and (h) of the Convention of the Elimination of All forms of Discrimination Against Women (CEDAW) provides that states must ensure the same rights for both spouses in respect of ownership, acquisition, management, administration, enjoyment and disposition of property whether free of charge or for a valuable consideration. Article 7(d) of the Protocol of the African Charter on Human and Peoples Rights on the Rights of Women in Africa (the Women’s Protocol) provides that in case of separation or divorce, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage.
The Succession Act Cap 268 allows individuals to create a will to distribute their property including matrimonial property, the act includes provisions related to matrimonial home recognizing the spouse and lineal descendants’ rights to occupy it. Section 23 of the same Act, where a deceased person dies leaving the spouse, children, dependant relatives and a customary heir, the children take 75%, spouse takes 15%, dependant relatives take 9%where the customary heir takes 1%of the estate of the deceased. But where a deceased person dies leaving a spouse, dependant relatives, a customary heir but no children then the spouse takes 50%, dependent relatives49% then the customary heir 1%of the estate of the deceased. Judicial precedents have also played a pivotal role in regard to the interpretation of matrimonial property,
In the case Muwanga v Kintu Divorce Appeal No 135 of 1997 it was held that matrimonial property is understood differently, 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 the marriage, there is property which the husband may hold in trust for the clan, each of these should be considered differently. The property which each spouse is entitled to is that property which the couple choose to call home and which they jointly contribute to (Emphasis mine). Thus, for any property to amount to matrimonial property, the couple must have contributed to the to the acquisition of the property during the marriage. The decision to divorce is one that a couple that 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. Not every property acquired either individually or jointly before or during the subsistence of the marriage constitutes matrimonial property to be shared equally upon divorce.
In Charman V Charman, Matrimonial property was defined as the property of the parties generated during the marriage otherwise other than by external donation. Furthermore, Sections 9 and 10 of the Family Law (Scotland) Act 1985 defines matrimonial property as the matrimonial home plus property acquired during the marriage otherwise than by gift or inheritance. Not every property acquired by either spouse during the subsistence of the marriage constitutes matrimonial property.
The contribution by the spouse does not necessarily have to be financial contribution. Our courts have recognized unmonetized contribution of spouses and have established a principle recognizing each spouse’s contribution to acquisition of property and this contribution may be direct where contribution is monetary or indirect where the 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 Ugandan 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 an innocent party in matters of divorce or judicial separation court may order that she remains in the matrimonial home.
The age of the children may also influence 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 children.
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 toward the acquisition of the property in dispute.
For a spouse to be entitled to a share of a property acquired by or registered in the name of the other spouse, he or she has to prove financial contribution towards the acquisition of property. Unquantifiable non-monetary contribution by a spouse will not entitle a spouse to a share of the property. The spouse who claims a share in any property acquired during the marriage must prove the extent of his or her contribution towards the acquisition of the property in dispute. Courts will consider properties acquired during the subsistence of the marriage, evidence of the contribution both direct and indirect, the period for which the marriage 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 there of 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 indirectly towards the acquisition of the property.
Article 7(d) of the Maputo Protocol provides for women’s right to an equal share of matrimonial property. The Norwegian Supreme Court ruling in favour of the woman held that
“The acquisition of the house was financed with man’s income and that he had physically contributed to the its construction, but his wife was fully occupied with the taking care of the house and their three young children. In my view this is what made it possible for the man to put so much work into the construction .When spouses practice such a division of labour ,it leads to the wife being cut off from paid work and from any great physical participation in the construction business .The wife can be said to have helped the family get their own home and legally I find it inappropriate to regard this effort as insignificant in relation to the man’s efforts in the acquisition of the property.”
With this ruling, the principle that women should be entitled to an equal share of matrimonial property even if they have not contributed substantially to its acquisition was established in Norwegian law. Since then, it has been used in many court decisions and in 1991 it was codified under Article 31(3) of the Norwegian Matrimonial Causes Act. In the latter case court acknowledged “housework” as a form of contribution by taking care of their children and the home, making it possible for the husband to provide direct contributions to the house and working and earning money in order to provide the materials used for the building.
With regard to joint property where both spouses contributed to the purchase of the property, the legal spouse is that a spouse is entitled to his or her contribution towards the purchase. In Kagga V Kagga High Court Divorce No.11 of 2005 Mwangusya J observed that
“Our courts have established a principle which recognizes each spouse’s contribution to the acquisition of the property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic services. When distributing the property of a divorced couple, it is immaterial that one of the spouses was financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the wealth acquired, the contribution of the petitioner is no less important than that made by the respondent.”
The court proceeded to order for the registration of 50%interest in the matrimonial house and for the transfer of several other houses in favour of the wife, despite the judge’s finding that that the wife had only rendered domestic services as opposed to the respondent husband who was the financial muscle behind all the wealth.”
In Chapman V Chapman [1969] ALL ER 476, where the wife was held to have acquired an equal share in the property although she had not made an equal cash contribution to the acquisition of the property in question. The court found and held that the husband and wife had put all their financial resources into the pool to purchase their house without reserving any special interests.
The spouses’ contribution is not restricted to 50% share either in their matrimonial home or in other jointly held property. In Mayambala V Mayambala High Court Divorce Cause No 3 of 1998, the wife’s interest in the matrimonial property was established at a 70% share.
In the case of Hajji Musa Kigongo V Olive Kigongo High Court Civil Suit no 295 of 2015, court held that the woman had acquired an interest in the house where she had lived for 26 years, although there was no evidence of marriage ,the court put into consideration the fact that for a period of 26 years, the man had never objected to stay in the house, making her believe that it was her home. He was therefore estopped from denying that she had an interest in the said home. Furthermore, that the woman had referred to herself as Mrs. Kigongo without objection from Mr. Kikongo, had indirectly contributed to the house including giving birth to two children and this is in regard to illegal marriages or cohabiting relationships
In conclusion, when determining a fair division of assets, divorce courts should consider the actual contribution of each spouse either directly or indirectly, equitable doctrines should be applied where there is proof that one spouse’s contribution enhanced the value or acquisition of property during the marriage. Pre- marital assets should remain non-shareable unless there is evidence that they were contributed to jointly or transferred by clear intention and a mere exchange of religious vows does not itself convert property owned individually prior to the marriage into jointly owned property in regard to non-formalized or customary marriages the contributions of both partners to the relationship and property should be recognized under similar laws regulating formalized marriages. Because most customary marriages favor men against women. However, legal reforms should be put up I regard to matrimonial property, the matrimonial property laws should be enacted since today’s marriages end eventually, vows will and forever end at the court house. Let the law be the ledger that balances affection with fairness.
By: Nayesiga Viola
The Deputy Speaker of the 20th Nkumba University Law Society Parliament, Treasurer, Nkumba University Law Research Club.
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