What is Divorce?
Divorce is the permanent termination or dissolution of a legally valid marriage by a court of competent jurisdiction.
For a divorce to be granted, there must be a legally recognized marriage.
For instance, In Haji Musa Kigongo V Olive Kigongo Civil Suit №295 of 2015, the court held that the parties were not legally married. No customary marriage took place since there was no evidence of the exchange of bride gifts.
Although the general premise for divorce to happen is the existence of a legally valid marriage, courts have been seen to award divorce even though no marriage existed between the parties ab initio.
Separation
Separation refers to a situation where the husband and wife stay away from each other for a given period.
This can be by;
- Agreement — Where the parties mutually agree to consent to stay away from each other.
- Judicial Separation — Where the court has ordered such separation.
Separation is provided for under Section 14 of the Divorce Act Cap 249.
Note: Separation unlike divorce does not end a marriage but suspends certain spousal rights and roles.
Neither the husband nor wife can re-marry within the separation period (They are still considered to be husband and wife)
The wife is still subject to maintenance by the husband throughout the separation period.
Since Ugandan law recognizes various forms of marriage namely; Customary, Islamic/Mohammedan, Hindu, and Civil/Christian marriages, various legislations apply to govern the modus operandi of divorce under each type of marriage.
Divorce is governed by various statutes such as; The Divorce Act Cap 249, Customary Marriage Act Cap 248, Hindu Marriage and Divorce Act Cap 250, Marriage and Divorce of the Mohammedans Act 252.
Such statutes lay down the framework, procedure, and various rules that govern the Divorce process under the recognized forms of marriage in Uganda.
JURISDICTION IN DIVORCE MATTERS
Divorce proceedings are instituted by way of Petition.
A husband or wife may file a divorce petition in court, seeking that the marriage be dissolved.
Note: A spouse filing a petition is a Petitioner and the spouse against whom the claim is made is a Respondent.
Divorce petitions are filed in a court of competent jurisdiction.
Where both petitioners are African, the petition may well be filed in a Chief Magistrate’s court.
Where one of the petitioners is non-African, then the petition must be filed in the High Court.
DIVORCE UNDER VARIOUS FORMS OF MARRIAGE
Divorce under Customary marriages
Divorce under customary marriages is governed by the Customary Marriage and Registration Act. According to most customs, marriage is instituted by way of exchange for the bride price. Resultantly, the dissolution of a customary marriage is effected after the return of the paid bride price.
However, in Mifumi (U) Ltd and 12 Others V Attorney General 2007, the demand for and refund of the bride price after the dissolution of a customary marriage was held to be unconstitutional.
As a result, spouses married under customary law have resorted to courts to seek remedies.
Courts resultantly apply customary norms of the respective parties and the law while adjudicating such divorce matters.
Divorce under Islamic/Mohammedan Marriages
Divorce under Islamic marriages is governed by the Marriage and Divorce of Mohammedans Act. The Act does not exhaustively provide details on divorce but directs to draw inference from the principles of the Quran and the Islamic religion.
Under Islamic Law, marriage can be dissolved in the following ways; by the husband through Talaq where the man renounces his wife by declaring the word Talaq, by mutual agreement of the spouses (Khul); by judicial order of separation after a petition in court (Fask); and divorce by oath.
Divorce under Hindu Marriages
Divorce under Hindu marriages is similar to that under Civil/church marriages. Section 8(1) of the Hindu Marriage and Divorce Act Cap 250 exclusively provides for the application of the Divorce Act Cap 249 in marriage and matrimonial causes between Hindus.
Divorce under Church/Civil marriages
This type of divorce is governed by Divorce Act Cap 249 as discussed below;
GROUNDS FOR DIVORCE
Grounds for divorce refer to the potential foundational causes that lead a party to petition the court for divorce to end a marriage.
According to Section 4 of the Divorce Act, a man could petition the court on grounds of adultery to attain divorce. A woman had to further prove not only adultery but also incest, bigamy, cruelty, sodomy, and bestiality on top of the grounds that were required to be proved by the man.
This was an unfair position that discriminated against women putting them in a very unfair position of having to prove more grounds.
Such rules were based on the archaic legislation that survived in ancient England that placed women in very inferior positions to men.
With the evolution of family laws in Uganda, an eminent decision was held in Uganda Association of Women Lawyers and 5 Others V Attorney General (2004) UGCC 1 which challenged the survival of Section 4 of the Divorce Act Cap 249 on grounds of unfair discrimination between men and women.
Section 4 was held to be in violation of constitutional rights guaranteed by Articles 21, 31, and 33 of the Constitution of the Republic of Uganda (1995) as amended which advocate for equality between men and women in marriage even at its dissolution.
It was further held that the grounds for divorce mentioned under Section 4 of the Divorce Act, Cap 249 not only apply to men but equally to women.
Below are the grounds for divorce;
1. Cruelty
Cruelty refers to any act, physical /non-physical, violent or non-violent, constitutes of words or silence or any other acts or omissions that make the petitioner intolerant, heavy and unable to hold the weight of such acts or omissions.
In Colarossi V Colarossi 1965 it was held that cruelty refers to danger to life, limb or health.
It is worth noting that cruelty can include;
- Physical cruelty. In Habyarimana V Habyarimana, the husband occasionally pulled the wife’s hair and this amounted to physical cruelty.
Other acts such as non-consensual sex (marital rape) are also regarded as acts that amount to physical cruelty.
This was illustrated in Uganda V Yiga Hamidu (2002), where it was held that women in marriages are entitled to the right of human dignity and submission to sex against their will directly violed such right.
- Mental Cruelty. Acts or omissions that lead to mental unwellness. These can include; constantly refusing to eat the wife’s food at home can amount to mental cruelty if it has the effect of making her mentally disturbed.
2. Adultery
Adultery refers to the voluntary sexual intercourse of a married person with another person outside the marriage.
In Mayambala V Mayambala High Court 1998 adultery was defined as the ‘voluntary sexual intercourse between a married person and person of the opposite sex, the two persons not being married to each other
According to Section 154 of the Penal Code Act Cap 120, men can only be convicted for adultery after having sexual intercourse outside the marriage with married women. This section excludes women who are not married.
The position is different for women; in that sexual intercourse outside marriage with any man (married or not married) automatically amounts to adultery.
However, the decision of Uganda Association of Women Lawyers and 5 Ors V Attorney General ruled out Section 154 of the Penal Code Act to be unconstitutional.
This case (supra) further ruled out the requirement of the Divorce Act, in which, to sustain a divorce petition, women were required to prove extra grounds such as apostasy, cruelty, and desertion in addition to adultery, unlike the husband who was required to prove a single ground.
Note: Following the decision in Uganda Association of Women Lawyers V Attorney General, a petitioner can move a divorce petition relying on a single ground for divorce.
Proof of Adultery
Since it is hard to directly capture individuals in adulterous acts, courts have adopted reliance on circumstantial evidence (similar to criminal law) to prove adultery i.e., proof of sexual intercourse, pregnancy, and birth of children and reliance on corroborative evidence. This was as well discussed in Ruhara V Ruhara.
For example, in Nyakairu V Nyakairu [1979] HCB 261, the petitioner’s reliance on rumors that his wife was usually picked from the matrimonial home and stayed out late was considered insufficient evidence to support the adulterous nature of the wife.
3. Desertion
Desertion refers to physical withdrawal or leaving with an unjustified reason for a given period (minimum statutory period of 2 years).
This was illustrated in Erume V Kyomugisha Divorce Cause №9 of 2014 where the husband was granted a divorce on grounds of desertion after the wife disappeared without a trace.
Types of Desertion.
Desertion is classified into two namely;
Direct desertion. This is the type of desertion where a partner physically leaves home for 2 years or more.
Constructive desertion. This is the type of desertion where a partner consistently acts in a way that causes the other spouse to have the desire to leave the matrimonial home.
Ingredients of Desertion
In Lang V Lang [1954], it was held that to prove the existence of desertion, two ingredients must be proved i.e.;
- Act of desertion. This can involve a party to the marriage abandoning the marital home for a period of 2 years or more.
- Intention to end the marriage. There must be an intention of a deserting partner’s intention to never return. The desire to end the marriage union.
Other elements Of Desertion
- Cessation of cohabitation
- Lack of consent from the abandoned spouse
- Lack of unjustifiable misconduct by the abandoned spouse to justify the desertion
- Intention to abandon
- Lapse of the statutory period i.e., 2 years or more
Besides the discussed grounds for divorce, there are various factors on which a petitioner can rely to petition the court for a divorce.
4. Marital Offences
Marital Offences are provided for by Section 149–155 of the Divorce Act. Furthermore, they are also provided for by Section 41 of the Marriage Act.
These include; Bigamy, Impersonation, false declaration, rape, change of religion, sexual starvation, and excessive demand for sex among others.
A petitioner can outrightly rely on any marital offence to petition the court for a divorce.
PRAYERS FOR DIVORCE
Prayers for divorce are requests of parties intending to get divorced.
These are orders granted upon a divorce petition.
Prayers are divided into two;
- Primary Prayers- These include; Decree Nisi, and the Decree Absolute.
- Consequential Prayers
1. Primary Prayers (Orders Granted Upon a Divorce Petition)
a) Decree Nisi — A decree of separation issued by court after grounds for divorce have been proved to exist.
It should be noted that a decree nisi runs for a period of 6 months (cooling period) before a decree absolute is declared. This is provided for by Section 37(1) of the Divorce Act Cap 249.
Parties may present evidence that supports or bars the divorce petition from proceeding. They can as well choose to reconcile within that period.
If the parties fail to reconcile, they may then apply for a decree absolute. Kigongo V Kigongo
b) Decree Absolute — This refers to the decree sought after the lapse of the period of the decree nisi (cooling period). The decree absolute is sought to completely dissolve the marriage.
This is provided for by Section 37 (2) of the Divorce Act
See: Kazibwe V Kazibwe
Mayambala V Mayambala
Kayhul V Kayhul
2. Consequential Prayers
Division of Matrimonial Property
In the division of property, the constitutional provision of Article 31 (1) harbouring the principle of equality in marriage should be considered. This accords equal and fair treatment of spouses during the subsistence or at the dissolution of the marriage.
See: Kazibwe V Kazibwe, Rwabinumi V Bahimbisomwe, Mayambala V Mayambala
Alimony
Temporary Alimony (Alimony Pendent lite) (Section 23 of the Divorce Act). This is the type of alimony afforded to the wife pending the suit during the time of the decree nisi until it is made absolute.
It should be noted that it does not exceed 1/5 of the husband’s net income.
Permanent Alimony (Section 24 of the Divorce Act)
Permanent alimony can be paid in a lump sum or installments. It can be paid annually, monthly or weekly. Mayambala V Mayambala
Custody and Maintenance of Children
This includes; Right to make decisions about the welfare of the children.
Factors considered while granting custody
The foundation premise courts take on while dealing with children’s matters is the Welfare principle.
- Age of the child-Infant children are usually placed in the custody of the mother
- Basic needs- Parents must be able to provide.
- Welfare Principle- Court considers that it is in the best interests of the child before it parts with a decision of granting custody.
BARS TO DIVORCE
Bars to divorce refer to the hindering factors that will deny the petitioner from seeking a permanent termination or dissolution of marriage from a court of competent jurisdiction.
Bars to divorce are categorized into two;
- Absolute
- · Discretionary
1. Absolute Bars
These are scenarios that will prevent the survival of a divorce petition prohibiting the dissolution of a marriage.
They are usually referred to as the 3 C’s. The absolute bars are of the essence that they prevent the petitioner from benefiting from their wrongdoings.
The absolute bars to divorce uphold the Equitable Maxim that ‘He who comes to court must come with clean hands.’
a) Collusion
Collusion is a situation where the spouses work collaboratively to achieve the commission of a marital wrong such as adultery with the motive of effecting divorce.
Collusion also survives as a defense where a spouse can plead that they intended to achieve the happening marital wrong. This can be raised where amid the agreement, one of the spouses later changes their mind.
For instance, A agrees with his wife B to allow A to have sexual intercourse outside the marriage (adultery) in a bid to secure a successful divorce between spouses A and B.
Such an arrangement amounts to collusion.
b) Connivance
Connivance is where the marital wrong i.e., adultery has been deceptively induced or encouraged by the other spouse. The other spouse knowingly permits the adultery and this makes the other spouse an accessory to the adultery.
Connivance was defined in Churchman V Churchman 1945 connivance was defined as a situation where a party to a divorce case has a “corrupt intention of promoting or encouraging either the initiation or the continuance of the spouse’s adultery.”
c) Condonation
This refers to knowledge of a matrimonial wrong i.e., adultery being committed by one spouse and the other spouse foregoes any action and restores the spouse to the position they occupied before the matrimonial wrong.
This means that one spouse has condoned the adulterous acts of the other spouse and there is no need to seek termination of the marriage.
Condonation has three elements namely;
(1) Knowledge
(2) Forgiveness, and
(3) Revival of conjugal rights. As it was in Cramp V Cramp (1920) where a husband had sexual intercourse with his wife after knowledge of her adulterous acts. The husband was presumed to have condoned the offense.
Where such elements have been proved, the bar of condonation is proved to exist and this will prevent a petitioner from seeking a divorce.
See: Howard V Howard (1962)
In Y. Mugonya V Trophy Nakabi Mugonya [1975] HCB 297, it was stated that proof of condonation requires evidence of forgiveness and reinstatement of the relationship.
In Crocker V Crocker (1921) a soldier who was away for duty wrote to his wife back home offering to forgive her for her adulterous acts while he was away. On his return, he changed his mind and petitioned for divorce. Court held that there was no condonation because of the lack of reinstatement.
The court should ensure that it satisfies itself that the petitioner (the party seeking divorce) did not condone or was an accessory to adultery. This is provided for by Section 6 of the Divorce Act.
Standard of Proof in Proving Absolute Bars
The standard of proof in relation to absolute bars is on a balance of probabilities.
In Blyth v. Blyth [1966] AC 643 Lord Denning held that: ‘So far as the bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on a balance of probability he did not connive or condone as the case may be.’
As a mandate, the court is meant to dismiss the petition if findings are made to the effect that the petitioner either condoned, connived, or colluded in the adultery. This is provided for by Section 7 of the Divorce Act.
Also read: Parentage
2. Discretionary Bars
Discretionary bars are bars that put the court at liberty to grant or deny divorce to the petitioner/party seeking a divorce.
It is at the court’s discretion to grant or refuse to pass a decree for divorce.
In addition, the court has the discretion to grant a divorce in situations where the petitioner is guilty of unreasonable delay, has committed a matrimonial offence, or willfully or by neglect conducted adultery.
This is provided for by Section 8(2) of the Divorce Act.
The court’s discretion must be carried out taking into account the rights of the parties, the interests of society and public morality.
LEGAL EFFECT OF DIVORCE
The legal effect of divorce is to have the parties returned to their original status quo of man and woman or their position before the marriage occurred.
However, under Judicial Separation, the parties are still husband and wife. Spousal rights and duties are all suspended except for maintenance.
After the divorce, the parties can seek a number of remedies from the court. They can pray for costs, custody, and maintenance or alimony from the court.
In Catherine Leku V Jack Leku Divorce Cause №8 of 2009, the petitioner applied for divorce on grounds of adultery and cruelty. Findings revealed that the petitioner was constantly mistreated and embarrassingly treated in the presence of her relatives, children, and friends.
Court ordered that she stays in the matrimonial home and was also supposed to be paid 500,000 shillings per month to cater for her necessities.
PROCEDURE FOR FILING A DIVORCE PETITION IN UGANDA
- Filing a Petition. A divorce petition is filed in a court of competent jurisdiction. Where both parties are African, the petition is filed in the Chief Magistrate’s court where the spouses reside.
- Accompanying the Petition with necessary documents. The petition is filed with supporting documents like a summary of the evidence, a list of witnesses, a list of authorities to be used, and a fee for filing petitions (6000 sh)
- Obtaining Summons from Court. The petitioner then obtains Summons from the court requiring the respondent to either file a defense or appear in court on a date specified in the summons and serves it on the respondent within 21 days of the summons being issued by the court. The petitioner must file an affidavit of service in court after serving the summons on the respondent.
- Answer to the Petition. The respondent must file an Answer to the Petition within 15 days of receiving the summons and petition. The answer to the petition must be accompanied by a Summary of Evidence, as well as a list of documents, witnesses, and authorities on which the respondent intends to rely. The respondent must serve the petitioner with the answer and all attachments. The court will then refer the petitioners to mediation.
- Mediation. If mediation fails, the case is sent to a scheduling conference, where the parties agree on the issues to be addressed in court. A Scheduling Memorandum is filed here by both the petitioner and the respondent. Following the scheduling conference, the petitioner sets the case for hearing by serving the respondent with a Hearing Notice.
- Hearing. If the respondent fails to file an answer to the petition within 15 days, the petitioner may set the case for an ex parte hearing, in which the court will only hear the petitioner’s case. The court will hear evidence from the petitioner regarding his/her petition and the respondent regarding his/her response to the petition at the hearing. After hearing from both parties or just the petitioner if the respondent does not file an answer or reply, the court will issue a Decree Nisi.
- Granting Decree Nisi. After six months have passed since the date of the Decree Nisi, the petitioner applies for the grant of a Decree Absolute, which completely dissolves the marriage.
Conclusion
In a nutshell, this compilation harbors a discussion on divorce. The framework of the statutory laws and case law governs the survival of divorce in Uganda.
This is a spot-on study resource having brief but elaborate scrutiny on grounds, bars, prayers, and the legal effect of divorce.
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