PROMISE TO MARRY
What Is A Promise To Marry?
A promise to marry is a mutual promise
made by parties intending to get married and thereafter act in a way portraying
their intentions of getting married.
A promise to marry need not be written or express but can be implied
from the conduct of the man and wife intending to take on marriage.
At
common law, a promise to marry is
considered a contract to marry which
involves a man and a woman making promises to each other which they honor by
getting married. A promise to marry can be made by a man to a woman or a woman
to a man.
Below,
you will find the elements of a promise to marry, and situations when a promise to
marry will be enforced or not. The defenses and remedies available in case of
breach of a promise to marry.
Elements of a Promise to Marry
Since a
promise to marry is treated as a contract, it must have elements of offer, acceptance, and consideration.
Ø Mutual Promise by both parties. (Offer & Acceptance)
The promise to
marry must be made by both parties and acceptance should occur.
Ø Consideration
This can involve goods, money given in consideration for the
marriage.
In Moate V Moate
[l948] 2 All E.R. 486, the husband and wife had fallen out and the man
tried to recover property he had given to the wife during the engagement
period. He claimed that he had solely paid for the property despite the
property being registered in the name of the wife. The court held that gifts that
were given by a man to his fiancée could not be recovered since he intended
them to be gifts for marriage which had actually occurred.
Ø Free consent by both parties.
Consent
should not be obtained by way of violence, threats or force. Where consent is
present but obtained in the ways mentioned it is disqualified.
Ø Parties must act in a way that portrays their intentions to get married.
The
intending parties should take themselves as parties intending to get married.
In Larok V Obwoya [1970] HCB 41, a man
made a promise to a woman to marry her which promise he later never honored. The court granted the lady damages because she had suffered emotional hurt and the
issue had reduced her chances of getting married.
Factors Invalidating a Promise To Marry
For a promise
to marry to stand, it must not be induced by;
·
Fraud
·
Misrepresentation
·
Duress
· Should not be against Public Policy
Ø Misrepresentation
In Scott v Sebright (1886) LR 12 PD 21, woman
W sought a decree of nullity on
grounds of duress. A man M tricked a
woman W into taking over his debts.
He then refused to help her unless she married him. The woman was granted a
decree of nullity was granted on grounds that she did not give genuine consent
as required by law.
Ø Should not be against Public Policy.
According
to Public Policy, a promise to marry will not be enforceable if the claimant is
aware that the defendant;
Based on the above grounds, the promise will not be enforceable on grounds of public policy.· Is having an ongoing marriage,
· A promise to marry contingent on the death of the party’s partner
· A promise to marry contingent on the attainment of a party’s divorce.
This
was illustrated Shaw V Shaw [1954] 2 ALL
ER 638, where a man and woman cohabited for a while before the death of the
man. Unknown to the woman, the man was already married to another woman. On the death of the man, the woman sued the estate of the man on breach of promise to
marry since the man’s wife had died 2 years earlier before he himself died and
it was in that period that he was supposed to fulfill his promise to marry her. The court held that there was a breach of promise to marry by the man and granted her
damages.
Defenses Available Upon Breach of A Promise To Marry
Upon a breach
of a contract to marry or a promise to marry, a party can have various defenses
to justify their position for breach.
Defenses
available for a breach of a promise to marry include;
Ø Bad character
i.e. the person
has poor table manners,
Ø Frustration
Where the
conditions prevailing render the parties unable to honor their promise.
Ø Mental Incapacity
One party can
plead that they failed to honor their promise since the partner is insane.
In Durham V Durham, the Earl of Durham
sought to nullify his marriage on grounds that his wife lacked the mental
capacity to get married at the time they held their marriage.
The court held that
a contract of marriage did not require a high degree of intelligence to
understand.
The marriage
was considered valid and the wife understood the marriage contract at the
time though her condition later deteriorated.
Ø Misrepresentation
Portraying
wrongful facts about oneself to induce the other to enter into the promise to
marry.
This was
witnessed in Re C & D (1979) 35 FLR
340, where A was born a
hermaphrodite but was brought up as a boy. He later underwent surgery to remove
feminine organs. On marrying woman B, she later discovered this fact and
sought to nullify their marriage. The court held that it was sufficient grounds for
B to nullify such marriage since she
intended to marry a male.
Ø Mutual Release
Where the
parties agree to get released from their obligation under the promise to marry
the same shall be considered to have ceased.
Ø Impotence
If the man has
erectile malfunctions, this will render the promise to marry invalid since the basis for marriage i.e., the aspect of legitimizing sex to have children will
have died off.
Ø Duress
Use of
violence, threats to force someone into doing things against their will, or free
consent.
In Hussein v Hussein 2 All ER 344, a woman
W petitioned for a decree of nullity
on grounds that shortly before her marriage in England, her Egyptian
husband-to-be had repeatedly threatened to kill her if she did not agree to the
marriage. The judge granted the decree sought
REMEDIES AVAILABLE IN CASE OF BREACH OF A PROMISE TO MARRY
A promise to
marry is considered as a contract for marriage and is actionable upon breach.
When a party making a promise to marry breaches that promise they have various
remedies available.
The aggrieved
party can successfully claim remedies such as;
Ø Damages i.e exemplary, general, and special damages.
In Larok V Obwoya [1970] HCB 41, a man and
woman entered into a promise to marry each other which the man breached. The court awarded damages to the woman since she had suffered emotional hurt and it had
reduced her chances of getting married.
Ø Apply for compensation for the costs incurred.
As was
the case in Moate V Moate [1948],
where the applicant sought to re-possess the property that he had placed in the
name of the wife during engagement before they got married. However, court
held that the property he had given the wife was considered gifts in
consideration for the marriage which in fact occurred.
Ø Payment of the suit costs.
Ø Reconciliation of the parties.
A
promise to marry is considered to be a contract to marry upon the fulfillment
of all the required conditions such as Offer,
Consideration, and Acceptance. A breach will entitle the
aggrieved party to damages. Promises to marry are common under betrothal agreements.
DOMICILE
The Black’s
Law Dictionary (9th Edition) defines domicile as the place at
which a person has been physically present and that the person regards as home;
a person's true, fixed, principal, and permanent home, to which that person
intends to return and remain even though currently residing elsewhere.
In Whicker
v. Hume (1858) 7 H.L.e. 124, 160, Lord Cranworth remarked, "By
domicile we mean home, the permanent home….."
The principle
of domicile is specifically associated with a person’s place of permanent
residence. Domicile dictates the jurisdiction and the type of laws that apply
to a person.
Domicile is
also distinct from Nationality or Citizenship.
PRINCIPLES OF DOMICILE
· A person cannot be without a domicile.
· A person cannot have more than one domicile.
· A domicile must relate to a territory subject to a single law system.
· A domicile always connects with a place or location of permanent residency.
· A change of domicile may never be presumed, i.e, one must have to prove their change of domicile.
TYPES OF DOMICILE
· Domicile of Origin/Domicile by Birth
· Dependent Domicile/Domicile by Operation of Law
· Domicile of Choice
Domicile of Origin
Domicile of
origin is the type of domicile imposed on a person at the moment of birth. It
is based on paternal parentage. A child born in wedlock takes on the domicile
of its father, and a child born out of wedlock takes on the custodial parent,
mother, or father.
For foundlings,
they adopt the domicile of the place where they are found.
Dependent Domicile
This is the
kind of domicile taken on by persons who depend on others for sustenance.
The dependent
groups of persons include;
· Children/Minors
· Mentally ill persons
· Married women (Formerly)
Minors/Children
Children are
persons below the age of 18 years.
A legitimate child is born in wedlock, while an illegitimate child is born outside marriage. However, such a set of distinguishing children between legitimacy and illegitimacy is discriminatory and was ruled out.
According to
the previous law, upon the birth of a legitimate child, they attained the
domicile of their father—Vide Section 16 of the Succession Act Cap
162.
Minors derive
their domicile from their parents and do not change on marriage.
An illegitimate
child acquires the domicile of a parent, either a mother or father, they are
living with at the moment.
In the case of
adopted children, they gain the domicile of their adoptive parents—Vide Section
43 (3) of the Children Act Cap 59.
In the same
breath, foundlings take on the domicile of the place they are found.
Mentally Ill Persons.
Mentally ill
persons maintain the domicile they had before getting the mental illness.
Married
Women
Previously, the
domicile of a married woman depended on that of their husband. Once the woman
married, she dropped her domicile and took on that of her husband. Such a
hypothesis was based on the common law principle of marriage, which entails the
union of man and woman becoming one after marriage. Since the two become one,
the wife then adopted the domicile of her husband.
Similarly, this
was the position of the Succession Act Cap 162 under Section 14,
where a woman automatically obtained the domicile of her husband upon marriage.
It was only a
divorce or judicial separation that could break such domicile as held in AG
for Alberta V Cook.
In AG for
Alberta V Cook, the woman applied for divorce in Alberta. Her husband lived
in Ontario. In resolving the matter, the court held that the Alberta court had
no jurisdiction to hear the case since she was domiciled in Ontario.
Although
dependent domicile for married women was a thing, it was abolished by the Domicile
and Matrimonial Proceedings Act 1975.
Similarly, in
Uganda, dependent domicile for women has been abolished.
In Law &
Advocacy for Women in Uganda V Attorney General of Uganda Constitutional
Petitions Nos 13/05 & 05/06, the Constitutional Court was tasked to
determine whether certain provisions of the Succession Act Cap 162
are inconsistent with the principles of the constitution. The court made
findings to the effect that the relevant provisions of the Succession Act were
null and void since they infringed
fundamental human rights and violated the provisions of the constitution like
equality and freedom of personal liberty:
Among those was
Section 14 of the Succession Act Cap 162, which only
provided for a wife automatically adopt the husband's domicile upon marriage.
Still, there was no provision for a husband to do the same.
Note:
With the new Succession (Amendment) Act, a spouse can choose to remain
with their original domicile or adopt the other spouse's domicile upon
marriage.
Domicile
of Choice
Domicile of
Choice is the type of domicile that a spouse chooses to acquire upon marriage
or one which a spouse may choose to acquire after divorce, separation or
attaining the age of majority.
Section 7
of the Succession (Amendment) Act (which repeals Section 14 of
the Principal Act) introduces domicile of choice where a
person may, upon marriage, acquire the domicile of their spouse and upon
dissolution of marriage, or upon Judicial separation or any other separation
under the law they may acquire any other domicile. Previously a woman's
domicile followed that of her husband.
One can also
acquire a new domicile after they attain the age of majority or emancipation if
they move to a new place and decides to reside there permanently.
For example, in
Thornhill V Thornhill 1965 EA 268, a man petitioned the court for the
dissolution of his marriage on the grounds of the wife’s adultery. The
petitioner was a non-Ugandan who lived in Ceylon but had moved and lived in
Uganda for four years. He also had shares in a tea company, which made him have
intentions of buying a house in Kampala and making Uganda his permanent
residence. However, he stated that he would only stay in Uganda if the tea
company business worked unless he moved to another part of the world.
In resolving
the issues, the court held that even though he was living in a hotel at the
moment, he had acquired a domicile of choice.
RELEVANCY OF DOMICILE IN FAMILY LAW MATTERS.
Domicile comes into play in various family matters such as
marriage, divorce, succession, and property.
Domicile helps to determine the personal laws that apply to an individual
In private international law, the principle of domicile
connects a person to the laws of the country in which they are domiciled. A
country of their permanent residence or where they intend to live indefinitely
and not the country in which they reside for short-term purposes.
In Islands V Aslandis, the court had to determine the
laws that were to apply to the respondent, who was originally from Greece,
later lived in Kenya, and finally settled in Uganda to operate his business. The
respondent further testified that he intended to permanently live in Uganda but
left his wife and decided to live with another lady and child. The court held that
the respondent had acquired a domicile of choice in Uganda; hence the personal
laws that were to apply to him were the Ugandan laws.
Domicile helps to determine jurisdiction in divorce matters
Divorce is the permanent termination or dissolution of a
legally valid marriage by a court of competent jurisdiction.
According to Section 3 of the Divorce Act Cap 249,
where both the petitioner and the respondent in a divorce matter are Africans,
the petition may be filed in a Chief Magistrate or Grade 1 court
where the parties ordinarily reside. Where one of the parties is not African,
the petition may be filed in the High Court.
Furthermore, Section 1 of the Divorce Act Cap 249
does not authorize any court to make a decree for a dissolution of marriage
unless the petitioner is domiciled in Uganda at the time of presenting the
petition or the marriage was solemnized in Uganda.
In Joy Kiggundu V Horace Awori Divorce Cause No.8 of 1998,
the petitioner filed a divorce petition on the grounds of adultery and cruelty
of the respondent, which the court ruled to have no jurisdiction to hear the
matter since the petitioner was not domiciled in Uganda. Although the
petitioner and the respondent had solemnized marriage in Uganda, the petitioner
was domiciled in Kenya, where the respondent lived in their matrimonial house
and by virtue of her marriage to the respondent. Hence, she was domiciled in
Kenya at the time of filing the petition.
Domicile is relevant in Succession Matters.
Since domicile subjects one to a legal system of laws, it is
fundamental in determining a testator's testamentary freedom (person who makes
a will).
Since confusion might arise when a testator has property in
one country but is domiciled elsewhere, domicile comes into play during the
administration of estates and property taxation to determine which country’s
laws apply.
When a person dies leaving immovable property in
Uganda, such property is subject to the property laws of Uganda even if the
deceased might have been domiciled elsewhere at the time of their death.
This is not the case for movable property. Where one
dies, leaving movable property in Uganda, such property is subject to
the country's laws where that person was domiciled before or at the time of
their death. This is provided for by Section 4 of the Succession Act
Cap 162.
In Delahaije Joseph Julius V Kasolo Robins Ellos &
Kisembo John [2019] UGHCFD 34, the respondents' counsel successfully argued
that the court did not have jurisdiction to hear the suit because the subject
matter of the suit was the moveable property of the late Edmond Van Tongeren.
The latter was not domiciled in Uganda at the time of his death.
Furthermore, domicile also helps in determining the formal
validity of a will.
Domicile determines the Validity of a Marriage.
Since parties must conduct marriage according to the laws of
a country, parties must contract marriages according to the laws of where they
are domiciled.
Marriage is the voluntary union of man and woman to the
exclusion of others.
According to the laws of Uganda, marriage is heterosexual.
That is, between men and women who have attained the age of majority.
In the case of Cheni V Cheni [1962] 3 All ER 873, a
Jewish couple who were uncle and niece domiciled in Egypt contracted a
marriage. This was an acceptable practice in Jewish culture. The couple had moved
to England, and the wife sought a divorce to nullify the marriage because of
consanguinity. Although this is a valid basis for a divorce decree to be
granted according to English laws, such marriage was acceptable in Jewish
culture.
Hence, the court held that the marriage was valid according
to the parties' domicile at the time of its celebration.
DIVORCE
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 No. 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 done by;
· Agreement - Where the parties mutually agree and consent to stay away from each other temporarily.
· 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, and 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 or Grade I court.
Where one of the petitioners is non-African, then the petition must be filed in the High Court.
DIVORCE UNDER VARIOUS FORMS OF MARRIAGES IN UGANDA
Divorce under Customary Marriages
Divorce under
customary marriages is governed by the Customary Marriage and Registration
Act. According to most customs, marriage involves the exchange of the bride
price. Resultantly, the dissolution of a customary marriage is effected by 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 in
their divorce matters.
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 inferences 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. This is 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 in
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;
Ø 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.
Ø 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 the 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 the 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 No. 9 of 2014 where the
husband was granted the 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.;
Ø Act
of desertion. This can involve a party to the
marriage abandoning the marital home for a period of 2 years or more.
Ø Intention
to end the marriage. There must be an
intention for 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 offense 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 for
divorce are divided into two;
· Primary Prayers- These include; Decree Nisi, and the Decree Absolute.
· Consequential Prayers
1.
Primary Prayers
a) Decree Nisi –
This is a preliminary decree of separation issued by the court after grounds for
divorce have been proved to exist.
It is worth noting that even after a petitioner proves grounds for divorce, court does not grant divocrce right away.
This is to uphold the principle of preserving family institution. A marriage must have irretrievably broken down to opt for divorce.
The parites are allowed a period of a decree nisi which 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.
Within this
period, the parties may present evidence that supports or bars the divorce
petition from proceeding. They can as well choose to reconcile within such a 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 final decree
sought after the lapse of the period of the decree nisi (cooling
period). The decree absolute is sought for to completely end 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) harboring
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 before 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 foundational
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. A parent 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 conditions
that will prevent the survival of a divorce petition and hence prohibiting the
dissolution of marriage from taking place.
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 defence 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 between spouses A and B.
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. The 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,
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.
2. Discretionary Bars
Discretionary
bars are bars that put the court at liberty
to grant or deny divorce to the petitioner/party seeking 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 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
According to
Hyde V Hyde 1866 [L.R] 1 P&D 130, marriage is
defined as is the voluntary union for life of one man and one woman to
the exclusion of all others.
When a marriage
ends, 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 court. They can pray
for costs, custody and maintenance or alimony from court.
In Catherine
Leku V Jack Leku Divorce Cause No. 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. The 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
Ø 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 or Grade I court where the
spouses ordinarily reside. Where one is non-African, the petition is filed in
the High Court.
Ø Accompanying
the Petition with necessary documents. The petition
is filed with supporting documents such as a summary of the evidence, a list of
witnesses, a list of authorities to be used and a fee for filing petitions
(6000 sh)
Ø 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. The petitioner must file an affidavit of service in court after
serving the summons on the respondent.
Ø 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.
Ø Mediation.
As a first step, court first refers the parties to
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.
Ø Hearing.
Following the scheduling conference, the petitioner sets the
case for hearing by serving the respondent with a Hearing Notice. 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.
Ø 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.
In a nutshell, this section harbors a discussion on divorce. The framework of the statutory laws and case law that governs the survival of divorce in Uganda. This is a spot-on study resource having scrutiny on grounds, bars, prayers, and the legal effect of divorce.
ADOPTION
According to
the Black’s Law Dictionary 9th Edition, adoption is the taking and receiving as one's own
that to which he bore no prior relation, colorable or otherwise.
Adoption
is the process by which parental rights and responsibilities of the biological
parents of a child are transferred by way of a court order to the adoptive
parent or parents of a child.
Similarly, In
the Matter of the Adoption of Victoria Babirye Namutosi by Johnny & Cheryln
Walters, the court defined adoption as the creation of a parent-child
relationship by judicial order between a child and the adoptive parent.
The
constitution under Article 34(1), stresses that children have a right to
be cared for by parents and those entitled by law to bring them up.
LEGAL EFFECT OF ADOPTION
Legally,
this means that the adoptive parents are then treated as though they are the
biological parent of the adopted child.
The difference
between Guardianship and Adoption is that the former
(guardianship) does not extinguish the rights and responsibilities of the
biological parents but the latter (Adoption) does.
In the Matter
of Natalie Matama (Infant), it was stated that
adoption places the adoptive parent in the ‘shoes’ of the child’s parent.
JURISDICTION IN ADOPTION MATTERS
Jurisdiction
refers to the powers of a court to hear a matter before it.
Jurisdiction in
adoption matters is provided for by Sections 44-55 of the Children
Act Cap 59.
Adoption
matters are instituted by way of application or petition.
· Where both the child and applicant are citizens of Uganda, an application for adoption may be made in the Chief Magistrates Court. This was illustrated in the matter of Natalie Matama where both the applicant and the child were citizens of Uganda and the application was heard in the Chief Magistrate’s court. (Section 44 (1) (a)) Children Act and Section 3 (1) of the Children (Adoption Rules) Act.
·
Where the applicant or
the child is not a citizen of Uganda, then the application for adoption is
made to the High Court. This was the case in Re Benjamin Pietsche which
was presided over by Egonda Ntende J (Section 44 (1) (b))
Note: Although
jurisdiction conditions for applicants filing adoption applications may vary
depending on whether they are or aren’t citizens of Uganda, Section 44(2) of
the Children Act Cap 59 provides that a child need not be Ugandan to be
adopted.
The bare
minimum is that the child resides in Uganda.
GENERAL CONDITIONS FOR ADOPTION
An application
for adoption can be made by both citizens and non-citizens of Uganda.
Before one
adopts a child in Uganda, one must fulfill certain prerequisites. They are
provided for by Section 45 of the Children Act.
These are;
Age
Where the
applicant is sole, they must be 25 years and at least 21 years older
than the child to be adopted. Where they are joint applicants, one of the
applicants must fulfill the earlier stated requirements.
Consent
The persons in charge of taking care of the child must have
consented to the adoption application by the applicants. This consent must be
genuine and free.
Consent in adoption matters is provided for by Section 47
of the Children Act.
In the Matter of Adoption of Victoria Babirye Namutosi,
the biological father gave consent to the adoptive parents to proceed with the
petition.
It must not be induced by way of compensation or fraudulent
means. This was illustrated In the Matter of Peter Ssebuliba Miscellaneous
Cause No. 37 of 2009, where the consent of the mother has not been obtained prior to the petition. As a result, she filed, an application for a writ of habeas
corpus.
Where the consent is not genuine or obtained freely, adoption can be set aside.
Spousal
Consent
Where the
applicants are married, both spouses must consent to the adoption. Consent can
also be waived in some instances where the other spouse’s consent cannot be
obtained because the spouse cannot be found, incapable of giving consent or
where the spouses permanently separated. This was witnessed in Re Sharon
Asige.
Sole Applicants
A sole male
applicant cannot adopt a female child and neither can a sole female applicant
adopt a male child.
Exceptions
come in under special circumstances where after assessment by court, the rule
can be waived.
This was
illustrated In the matter of Mirembe Nansamba Claire. In this case,
despite the fact the uncle of the child was only 16 years older and a sole
male applicant applying to adopt a female child, the court granted the
adoption order considering the fact that he was already providing necessaries
for the kid and he was the maternal uncle.
Foster Care Period
According to Section
45(4), a child must have been fostered for a period of 12 months under
the supervision of a Probation and Social Welfare Officer. In Re
Micheal Benjamin Pietsch, originally, the fosterage period was 36 months
before the adoption could be granted.
Justice Egonda
Ntende connoted in the matter of Nicholas
Mwanja and Anor (Children) that it was stringent for non-citizens and not
in the best interests of the children to wait for such a long period of 36
months for fosterage.
Hence, in Re
Micheal Benjamin Pietsch, adoption was granted after the parents had
fostered the child for only 35 months with only 12 months in
Uganda. Courts have since waived the 36-months period and reduced it to 12
months or a year.
Probation Report
According to Section
45(5) Probation and Social Welfare Officers make reports to guide court in
decision-making concerning adoption.
The same report
can also be made by any other authority from the local government to guide on
the same.
Sole/Individual Applicants
Adoption cannot
be granted to more than one person to adopt a child at the same time except
where the applicants are joint applicants.
ADOPTION BY A NON-CITIZEN/INTER-COUNTRY ADOPTION
All the conditions set out in Section 45 CA (as
discussed in the previous section) equally apply to the adoption by non-citizens
with the exclusion of Section 45 (4) and (5) which connote the
applicant must have fostered the child for a period of 12 months and requirement
of a report from a Probation and Social Welfare Officer or an authority from a
local government.
According to Section 46 (4) of the Children Act
Cap 59, The conditions set out are not mandatory but act as a guiding tool.
The court can waive the conditions where it deems fit that it is in the best
interests of the child to do so.
The conditions for inter-country adoption are;
Residence
The applicant must have stayed in Uganda for a period of at
least 12 months/1 year. For example, in Sidney Harper & Wendy
Harper and Musinguzi, the applicants had lived in Uganda for a period of four
years. This was above the bare minimum required by the CA of one
year.
Foster care
Applicant must have fostered the child for a period of at
least 12 months/1 year under the supervision of a Probation and
Social Welfare Officer.
Exceptionally, in the case of Sidney Harper & Wendy
Harper and Musinguzi, the court granted an adoption order to the
petitioners although they had only fostered the child for nine months.
Criminal Record
Must not have any criminal records in their name.
Recommendation from Probation and Social Welfare Officer
The applicant must possess a recommendation about his suitability
from the PSWO of their respective country.
Compatibility of laws in an applicant’s origin country with Ugandan Adoption laws
The applicants’
origin country must be able to respect the conditions set out in the adoption
order issued by Ugandan courts.
In Sidney Harper & Wendy Harper and Musinguzi, the
applicants presented court with evidence of reports showing how their origin
country was willing to abide by the adoption order issued to the applicants
from Uganda.
Note: Inter-country adoption is not an option of the first
choice. This type of adoption only comes into play after other childcare
options like Family, Kinship, Foster care, and institutional care have been
exhausted.
FUNCTIONS OF THE COURT IN ADOPTION MATTERS
The Children Act further sets out the conditions the court must satisfy itself with before granting an adoption order under Section
48 that is to say;
·
Ensure
that the required consent is obtained
· That the adoption order is meant for the welfare of the child. Regard must also be drawn from the child’s wishes based on their age and understanding.
· That the applicant has not engaged in unscrupulous behavior to get compensation for their application for adoption
· Nor has any person parent, guardian or any person in charge of care of the child has received compensation in consideration for the adoption of the child.
Finally, the court must consider the Welfare Principle/Best
Interests Principle as set out in Section 3 of the CA as a
guiding principle in all children matters.
This was illustrated In the Matter of Hodkins Andrews (An
Infant) where courted noted that in all matters concerning children, the
best interest of the child should be the primary consideration. This is further
cemented by Art. 34 of the constitution.
REVOCATION OF AN ADOPTION ORDER
An adoption order is not absolute. It can be rescinded by the court in exceptional circumstances as captured under Section 46A of the Children
Amendment Act.
The court may, in exceptional circumstances, rescind an
adoption order on application by—
(a) the adopted child;
(b)
a parent of the adopted child or another person who was a guardian in respect of
the child immediately before the adoption;
(c)
the adoptive parent of the child;
(d)
any person who consented to the adoption;
(e)
the Minister in the case of inter-country adoption; or
(f)
any other person with justifiable reason.
Although this is the case, an adoption order can only be
rescinded if;
(a)
rescission of the order is in the best interest of the child; or
(b)
the order was obtained through fraud or misrepresentation
LEGAL EFFECT OF REVOKING OR RESCINDING AN ADOPTION ORDER
After granting an order of Adoption, all rights, duties,
liabilities, and responsibilities that a biological parent possesses pertaining to
a child are extinguished and vested in the adoptive parent. Section
51 CA.
Similarly, where the Adoption order is rescinded, the
formerly extinguished and transferred rights, liabilities, duties, and
responsibilities that were vested in the adoptive parent are then restored. Section
46A (3).
Generally, the court sets out the above-mentioned conditions one must fulfill before a
petition for adoption.
Although the conditions are set out, there are certain exceptional circumstances where the court has readily waived the conditions. Where it is in the best interests of the child to do so, the court will waive the conditions.
CUSTODY
A child is a
person under eighteen years of age.
According to Art
31 (4) of the Constitution of Uganda, it is the duty of both parents to
take care of their children. Parents have primary parental responsibility over
their children.
Parental
Responsibility responsibility refers to all
rights, duties, powers, and responsibilities a parent has in relation to a
child. (Section 1 Children’s Act)
The Children’s
Act does not expressly provide for the meaning of custody but it
defines a custodian under Section 1 as a person in whose care a
child is physically placed.
Article 31 (5)
provides that children should not be separated from their families or persons
entitled to take care of them against their will or those persons. The
exception comes in only where such separation is provided for by law.
What is Custody?
According to
the Black’s Law Dictionary 4th Ed, custody refers to the detainer of a
man's person by virtue of lawful process or authority.
Custody in
family law can be defined as the legal rules governing the care and physical
placement of a child.
In Baguma V
Mbabazi [2017], it was remarked that the Welfare Principle (Section 3
CA) is given paramount consideration while deciding matters concerning
children.
Lawful
separation of children from their families can be effected through Guardianship,
Adoption, or the issuance of Custody.
It is worth
noting that the order of custody is not absolute and can be varied at any time
if the court finds it in the best interests of the child to do so.
TYPES OF CUSTODY
Interim Custody
This refers to
the type of custody granted to a Probation and Social Welfare Officer (PSWO) or
any applicant (parent or guardian) pending the main custody
petition/application up to when a determination is made by a court. This kind
of custody is temporary. When the court decides on who is to take custody then
it ceases to exist.
Interim custody
is provided by Section 73A of the Children Amendment Act
Custody by Agreement
This is the
type of custody where both parents mutually agree on who should take custody of
the child. The custody agreement must be written and not induced by fraud or
duress. Custody by agreement can be joint, or sole.
Custody by
Agreement is provided for by Section 73B of the Children Amendment
Act.
An Application for
Custody Can Be Filed By a;
● Parent
i.e. Mother or Father
● Guardian
● Institution
or Organization
Custody is not
absolute. It can be varied by the court when it appears to be in the best
interests of the child.
Section 73 (2) of
the Children’s Act provides that the court may revoke custody at any
time if it considers that it is in the best interests of the child to do so.
An Application for
Custody Can Be Filed Against a;
● Father
● Mother
● Guardian
of the Child.
● And
any other person with parental responsibility over a child.
Section 85 of
the Children’s Act provides that where the court is satisfied with
willful neglect or mistreatment of the child by the person having custody of
the child proved by reports of the Probation Social and Welfare Officer (PSWO)
or Local Government Authorities, custody can be varied.
Furthermore, if
according to the court, both parents are unfit or it is not in the best
interests of the child to stay in their custody, then custody is granted to a
fit person. (Vide Section 87 CA)
Note:
According to Section 76 CA, any person having custody of a child(ren)
has a right to apply for maintenance from the parents of the child(ren).
Similarly, a
person who does not have visitation rights can as well apply for visitation
rights.
The maintenance
duty towards children does not cease even after divorce, separation, or the nullity of
marriage.
This was
evidenced in Hope Bahimbisomwe V Julius Rwabinumi HC Divorce Cause No.4 of 2004, whereafter
custody was granted to the petitioner (wife) the respondent (husband) was
obligated to contribute half of the general maintenance, education, and health
costs of the child.
Note:
A maintenance order ceases to have force and validity after a child attains the
age of 18. (See Section 82 CA)
APPLICATION FOR CUSTODY IN UGANDA
Below is the
procedure that an applicant must follow to obtain custody of a child.
An individual
who requests custody or maintenance is referred to as an applicant and
the party against whom the application is made is referred to as a respondent.
● An
application for custody and maintenance orders is made by filing an application
for custody supported by an Affidavit.
● The
Affidavit in Support must be included with the application, outlining
the applicant's reasons for custody and/or maintenance orders for the child.
● The
required filing fees (UGX 6,000) must be paid in the bank prior to filing the
application in court, and documentation of payment must be included with the
application.
● Then
the applicant obtains a summons from the court ordering the defendant to either
provide an affidavit in response or show up in court on a specified date and,
within 21 days of the court's issuance of the summons, serves it, along
with the application, on the respondent.
● The
petitioner must file an Affidavit of Service in court after serving the summons
on the respondent, detailing exactly what they served the respondent.
● The
respondent must file an affidavit in reply within 15 days of receiving the
summons and application, whichever comes first, or before the day on which they
are expected to appear in court.
The respondent is required to serve the applicant with the affidavit in reply and all of its supporting documents.
● The
court may hear the application in the respondent's absence in cases when the
respondent fails to submit an affidavit in reply within the allotted 15 days or
fails to show up in court on the day specified in the summons.
● The
applicant will testify about his or her application at the hearing, and the
respondent will testify about his or her affidavit in reply.
● The court will decide whether to give the applicant custody and maintenance orders after hearing from both parties, or from just the applicant in cases where the respondent does not file an affidavit in response.
PARENTAGE
An order for
parentage is an order made to determine the paternity of a child. It is made
before the child attains the age of 18.
WHO MAY APPLY FOR PARENTAGE?
According to Section
67 of the Children Act Cap 59, the following people may apply for
parentage;
· A mother
· Father
· Guardian
· Child (Through a next friend)
THE PROCEDURE OF APPLICATION FOR PARENTAGE
Ø An
application for parentage is made by a complaint on oath as provided
under Section 20, Rules 20 & 21 of the FCC Rules.
Ø A declaration of parentage can be made at any time;
·
During pregnancy
·
Before the child
attains the age of 18
·
3 years after the
death of the alleged mother or father
Ø Upon application, the summons are served on the alleged mother or father to appear in court. (Section 69 of the Children Act Cap 59)
Ø The applicant then adduces corroborated evidence such as blood samples, and DNA results. The burden of proof to show parentage lies with the party alleging. (Section 70 of the Children Act Cap 59)
Ø Upon analysis of the events and proof presented, court can then declare parentage.
EFFECT OF PARENTAGE
After the court
declares parentage, the legal effect of the declaration order is that it
establishes a blood relationship of father-child or mother-child.
The child is
placed in a legal position as though they were born in a marriage or wedlock.
Notably,
parentage does not automatically confer custody
rights. Vide Section 72 (1) of the Children
Act Cap 59.
This section
discusses Parentage and the capacity of persons who may apply for
parentage, Furthermore, it entails the procedure of application and the effect of
parentage.
SUCCESSION
TESTATE SUCCESSION
Testate succession is the form of succession that deals with
the distribution of property where the deceased left behind a will.
Upon the death of a person, they become incapable of dealing
with their estate. As a result, the named executor in the deceased's will then
becomes responsible for administering the estate of the deceased in accordance
with the terms stated in the will.
The will portrays the deceased’s wishes, how they intend the
named executor to distribute their estate amongst beneficiaries, and in what
shares or proportions they are to benefit.
NOTABLE TERMS IN TESTAMENTARY SUCCESSION.
Testator
A testator is a person who makes a will.
Executor/Executrix
An executor/executrix is the person appointed by a testator
in a will to carry out the administration of the estate of the testator upon
their death.
Where no executor is appointed or the deceased leaves
no will (intestacy), the person who takes legal responsibility for
administering the estate is called an administrator/administratrix.
An executor acts as the legal representative of the
deceased. They can sue and be sued on behalf of the deceased’s estate.
Estate
This is the aggregate of all property and interests the
testator leaves behind.
Administrator
An administrator is a person who applies to the Administrator General for Letters of Administration (authority to administer the estate of the deceased) where there is either no will or there is an invalid will, i.e., a will that has named no executor.
WILLS
What is a Will?
A will is a formal written declaration of the testator’s
wishes on how they wish their property to be distributed upon their death.
The Black’s Law Dictionary 9th Edition
defines a will as the legal expression of an individual's wishes about the
disposition of their property after death.
A will is ambulatory, i.e., effective upon death, and a will
is also revocable until death.
A will can also be modified at any time during the testator's lifetime.
What is a Codicil?
A codicil is an instrument explaining, altering, or adding to
a Will and is considered part of the will.
TYPES OF WILLS
Privileged Wills
These are informal wills made by army men and women in
actual warfare or mariners at sea in actual service.
Privileged wills are provided for by Section 52-53 of
the Succession Act.
Privileged can be written or oral or take on any other form.
They need not be written nor signed but will be valid.
NB: Persons making privileged wills
must be 18 years and above.
Privileged wills are valid despite noncompliance with usual
statutory formalities as long as the testator was in actual service at the time
of making the will.
Unprivileged Wills
An
unprivileged will is a formal written document by an adult of sound mind,
attested to by more than two witnesses showing the testator’s estate and how it
is to be administered after death.
OTHER TYPES OF WILLS
Joint Wills
A joint will is a single will executed by two or more
testators disposing of their common property by transferring their separate
titles to one devisee.
Conditional/Contingent Wills
A conditional will is a will made, providing that it will
only take effect upon the occurrence of an uncertain event.
Mutual Wills
A mutual is a will made by one person establishing similar
testamentary provisions disposing of their estates in favor of each other.
Religious Wills
Religious wills are wills made by a testator specifying how
they want to be treated upon their death per religious rites.
CAPACITY TO MAKE A WILL
In Uganda, for one to make a legally valid will, they must
be;
·
An adult, i.e., a person above eighteen years of
age.
·
Persons of sound mind. Persons who occasionally
have mental illness may make wills during intervals in which they do not have a
mental illness. Persons with hearing, physical or visual impairments can make
wills if they can.
Section 36 of the Succession Act provides for
the capacity of persons to make a will.
Although the law advocates for testamentary freedom, there
are mandatory conditions to be fulfilled by a testator while making a will.
Where such conditions are not fulfilled, the court has the power to order the
fulfilment of such provisions off the deceased's estate.
SALIENT FEATURES / CONTENTS OF A VALID WILL
There is no particular format for making a will, and a
testator has testamentary freedom to write a will in any desired form.
For purposes of reference, a will may take the format of the
form provided in the Fourth Schedule of the Succession Act.
Below are the salient features a valid will should possess;
· Name and address of the testator
· Marriage status
· Name(s) of spouses
· Names of the executor(s)
· Appointment of an heir
· Names of the children / Beneficiaries
· Names of the guardians of the children
· Property owned by the testator
· Distribution of the testator’s property
· Burial wishes
· Signature of the testator
· Names, addresses, and signatures of the witnesses
Residential Property
A residential holding is a place or a portion of the
building used wholly for dwelling purposes by a family.
Section 36(6) of the Succession Act (as amended)
prohibits the disposal of a testator's place of principal residence in a will
to protect the welfare of the surviving spouse and children. A testator's place
of a principal residence or if the testator was married, the place where the
spouse and the children ordinarily reside is not subject to disposal.
The exception only comes in where the testator, in their
will, clearly provides alternative accommodation for the spouse and the
children entitled to occupy the principal residence.
Maintenance
It is mandatory for a testator in their will to reasonably
cater for the maintenance of their children, spouse, or dependent relatives.
Section 37 of the Succession Act (as amended)
provides that a testator (one who makes a will) must provide adequately for the
maintenance of;
Ø Child or a child who suffers from a mental or physical disability
Dependent relative
Ø A
dependent relative who was substantially dependent on the testator for their
sustenance prior to the testator’s death.
Section 38 of the Succession Act (as amended)
provides that where the above-listed beneficiaries are not catered for in the
will, they can apply to the court, which may so order for maintenance to be
deducted from the testator’s estate to cater for them.
FACTORS THAT MAY LEAD TO THE INVALIDATION OF A WILL
· A will made by a minor
· A will made by a person of unsound mind (who, at the time of making the will, was incapable of making the will due to mental illness.)
· A will made by a person with physical, visual or hearing impairment who was incapable of making the will at the time of making the will.
· A will made under duress, coercion, undue influence or mistake of fact.
· A will induced by abuse of a position of trust or abuse of vulnerability of the testator.
· Non-Attestation. Attestation is the evidence or proof of something. Where a will is not attested to, i.e., a will not witnessed by two or more witnesses; it will be invalid. Section 50 of the Succession Act Cap 162 (as amended) makes it a requirement for each of the witnesses attesting to a will to write their names and addresses on every page of the will in the presence of the testator.
· Form. A will must be written. The exception only comes for privileged wills, which only apply to mariners at sea and army men in actual warfare.
REVOCATION OF WILLS
Section 57 of the Succession Act provides
revocation of unprivileged wills.
To Revoke a Will, one must;
· Have the capacity to revoke a will
· Have the intention to revoke a will
· Commit a satisfactory physical act to that effect, i.e., obliteration or destruction.
· Have all the above conditions present.
A Will can be revoked by;
Physical destruction
For this condition to be fulfilled, two elements must be present;
·
The intention to destroy. The act of destruction
must be accompanied by animus mocandi.
·
The act of destruction
In Hobbs v Knights, the testator completely cut out
the signature. Since a signature is vital to the validity of a will, the will
was considered revoked.
Destruction of a will should be complete. Where it is
partial destruction, the will is not automatically revoked. The parts that are
not destroyed will be valid.
However, where the will makes no sense because of the
partial destruction, it cannot be effective.
Codicil
A codicil is a supplement or addition to a will modifying,
explaining, or qualifying the will in some way considered part of a will.
Another will
Where a
testator makes two or more wills, the court considers the latest will as the
deceased's last will.
This
was illustrated in Beatrice Malinga V Jonathan Malinga [2015], where the
deceased left two wills. The first will named the defendant (son of the
deceased) as the executor, while the latter will named the plaintiff (widow of
the deceased) as the executor. The defendant claimed that the latter will that
named the plaintiff as executor was invalid due to inconsistencies, like errors
in the names of beneficiaries. The issue before the court was to determine
which of the two wills was valid.
The
court held that the latter, being the last version of the will despite spelling
errors in the names of beneficiaries, was the valid one. That the testator had
a right to make any changes to the will before his death.
Marriage
Vide Section 56 (1) of the Succession Act.
Writing declaring an intention to revoke executed in the same manner as a
will.
RENOUNCING PROBATE
Where the named executor/executrix does not wish to
take on the role of administering the estate or wishes to withdraw from the
role, they apply for renunciation.
Section 195 of the Succession Act provides for
the procedure of renouncing probate wherein it states that a person renouncing
probate may do so orally in the presence of a magistrate, commissioner for
oaths, or a justice of the peace or by writing signed by the person renouncing.
Such a person must not have intermeddled with the estate.
Renouncing precludes a renouncer from ever after applying for probate in
respect of the estate whose probate they have renounced.
REVOCATION OF PROBATE
Probate and Letters
of Administration are collectively called grants. Revocation of Grants is
provided for by Section 234 of the Succession Act Cap 162.
The Act provides
that grants may be revoked for just cause.
Section 234(2)
of the Succession Act further defines just cause to mean;
· That the proceedings to obtain grants were defective in substance
· That the grant was obtained fraudulently
· That the grant was obtained based on an untrue allegation that is material to the case
· That the grant has become useless or inoperative
· That the person to whom the grant was made has willfully, without reasonable cause, failed to file inventory to the court concerning the deceased's estate. (See; Isumba V Bulya.
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