Is the legal frame work on marriages in Uganda outdated? 🤔 Does it suit the current societal changes since different individuals, nations, societies and traditions perceive marriage differently and have been engaged in their own ideologies of what they believe marriage is or should be.
As a law student, I discuss the above statement giving my personal views and recommendations visa viz the law and statutes governing marriages locally and internationally. (Views are my own and do not explicitly exclude any views of other writers and academicians) Article written in October, 2019 😄
The Black’s Law Dictionary defines marriage as the legal union of a couple as husband and wife. The classic definition of marriage can be found in the case of Hyde v Hyde & Woodmansee, where Lord Penzance defined it as the voluntary union for life of one man and one woman, to the exclusion of all others. This has been enshrined in the 1995 Constitution of the Republic of Uganda (herein after referred to as Constitution), where a marriage is void when the parties are not respectively male and female.
Pinterest image of an art depicting a happy African couple. https://pin.it/LMk9wGW
Article 31(1) of the 1995 Constitution of the Republic of Uganda states that ‘men and women of the age of 18years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. In the case of Alai v Alai, Sir Udo Udoma held that ‘marriage is a ceremony by which a man and woman become husband and wife thereby creating the conditions of belonging to a particular class of persons to whom the law assigns certain equal capacity as qualified. There are five different forms of marriage in Uganda; Customary marriage, Mohammedan marriage, Church marriage, Civil marriage, and the Hindu marriage. Alai v Uganda outlined all forms of marriage recognized in Uganda by J Udo Udoma.
https://pin.it/7A34AEL Indian Doli Clip
. Today in society, there are a number of prerequisites before a marriage is valid, among these are; the age of marriage, consanguinity, affinity, notice of intention to marry being made, parent’s consent, monogamous unions, celebration of marriages and many others. There are also a number of laws governing marriage in Uganda, ranging from local to international laws; embedded in the compendium of laws relating to domestic relations to the international charters and conventions.
Section 1 of the Customary Marriage (Registration) Act (herein after referred to as the Customary Marriage Act) defines customary marriage as a marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community, or, any marriage celebrated under part III of this Act. It is now law in our Courts that payment of the full bride price requested by the bride’s family is proof that a customary marriage has been celebrated between two parties. In Nemezio Ayiiya Pet v Sabina Onzia Ayiiya, Court held that before all dowry is paid, a man and woman cohabiting can be regarded as husband and wife but (the customary) marriage is not valid until all dowry is paid. Consequently section 34 of the Marriage Act states that a church or civil marriage shall be invalid if either of the parties to it at the time of the celebration of the marriage is married by customary law to any person other than the person with whom the church or civil marriage is had.
The law on marriages emanates from the grand norm; the Constitution. However, it is necessary to know that on a preliminary analysis, these laws are subject to amendments when they can suit the societal changes accordingly and can still be in line with the constitution provisions.
The following is how the legal frame work on marriages in Uganda is outdated to a great extent and does not suit the current societal changes and traditions, my personal views on this and recommendations visa viz the statutes;
Under current needs and societal changes, do we still need laws on polygamy? In Alai v Alai, a Moslem man committed adultery with a woman who was married to a Moslem man. Section 1 of the Marriage and Divorce of Mohammedans Act provides that the Marriage Act and Marriage of Africans Act shall cease to apply to the celebration of marriages between persons both of whom is a party to an existing marriage under or declared valid by the Acts. In my opinion I submit that the laws on polygamy are not efficient enough as they are subject to a number of limitations on the fact that the person should have been in a monogamous marriage and the act of polygamy at the face of it feels like an act of adultery. The mere act of courtship between a man and a woman he intends to marry as second wife is an aspect of adultery and limited time and pleasure for the current wife which can be used as a ground for divorce for the woman. Therefore, I believe we can as well live without the specification of the law on polygamy.
Art by Valeria Petrone https://pin.it/1vtgL69
Some laws are contradictory today and do not suit the current society. The agreed position many Courts and authors on custom is that a customary marriage is dissolved when bride price is returned to the husband’s home. In fact, there is previous authority to the effect that the Divorce Act does not apply to customary marriages. In John Kintu Muwanga v Myllious Gafabusa Kintu, where Justice Bossa was of the view that proceeding under that Act would be superimposing of foreign regime of law upon spouses who chose to contract a marriage under custom. In Mifumi (U) Ltd and 12 Ors v Attorney General (supra) found the practice of return of bride price as demeaning to the dignity of women and in violation of a married woman’s constitutional right to be equal co-partners to men. Therefore, the practice as a form of dissolution of a customary marriage is repugnant to natural justice, equity and good conscience and void with the Constitution. The Customary Marriage Act makes provision for validity and registration but not dissolution of customary marriages. The Divorce Act which in its preamble is an act relating to divorce did not specifically provide for the types of marriages it would apply to as stated in Namukasa v Kakondere, where Court held that the Divorce Act was not specifying which types of marriages it would dissolve and customary marriage could be dissolved under it.
Copy of JUST DIVORCED funny quotes by Sally-Arts https://pin.it/1yi6ZWW
On the question of grounds of divorce, section 4 of the Divorce Act provides the grounds under which a husband and wife can petition for divorce. However, Courts have pronounced themselves on the unconstitutionality of those grounds when in the case of Uganda Association of Women Lawyers and Ors v Attorney General (FIDA Case). It was held that section 4 of the Divorce Act was null and void in as far as it required women to prove many grounds for divorce as opposed to men who were required to prove only one. This law however has never been amended. The Court considered this as discrimination on the basis of sex and in violation of the equality provisions under the Constitution of Uganda. Unfortunately, there has not been statutory amendments to provide for this development.
There is no definition of cruelty in the Divorce Act despite being a ground for divorce. In Habyarimana v Habyarimana, it was held that there is no definition of cruelty in the Divorce Act but case law has established that no conduct can amount to cruelty unless it has the effect of producing actual or apprehended Injury to the petitioners’ physical and mental health. That there must be danger to life, limb or health, bodily or mental or reasonable apprehension of it to constitute cruelty. This feels outdated because once someone is not comfortable in marriage, so much proof of cruelty and the like can be a hindrance to justice.
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The laws relating to age of consent to validate marriage in Uganda; we see article 31 of the Constitution providing that a person of 18years of age can contract into marriage, while section 11 of the Customary Marriage Act provides for 16years for girls and 18years for boys. This is a contradiction to the Constitution and therefore we see that there’s need to revisit the laws in the country.
There’s also a lot of bureaucracy in the process to determining validity/registration of a marriage. We see that the Uganda Registration Services Bureau (URSB) portal provides for requirements for registration of marriage including the days one has lived in the district, the LC1 letter, an interview, and many others. These laws demotivate many from getting married legally and they end up cohabiting.
On the issue of gaining parent’s consent before marriage. This seems outdated as the law already provides under article 31 that there is free consent of parties intending to marry as long as they are above 18years. Further in section 17 of the Marriage Act, it states that minors ought to consult from their parents, and have to be of 21 years and above; consulting the father first, if it’s not possible, then the mother, if not, then the guardian and the chain continues. All this would rather become one law stipulating that they adjust the age of consent from 18 to 21 in the constitution, or rather abide by the constitution, or ask consent of any parent available.
Photo by Hunter Martin on Getty Images (Texas Parental Visitation)
To what extent do we have to follow lineage in the confines of the law to constrain marriages. In the case of Bruno Kiwuwa v Serunkuma & Namazi, Court declared the marriage null and void basing on the fact that they were marrying against custom. Consanguinity in Uganda laws and affinity seems to be so far-fetched. The second schedule of the Customary Marriage Act gives an outline of the relationships prohibited, the degree of kinship, and we see that the issue of affinity is outdated. There is no proper justification to prohibit marriage between persons in long distance relationship by marriage under affinity.
Photo from Chicago Tribune
Section 14 and 15 of the Succession Act provides that divorce can only be granted where husband and wife have a domicile. In Lord Advocate v Jaffrey, the Court defined domicile as that where the husband lives. I believe this law ought to become rational that a woman or man can file for divorce irrespective of the domicile, as this delays justice in instances where the parties are aggrieved and leaving separately, the strictness on jurisdiction will only delay equity. In Robina Kagaya Erina Kiyingi v Dr. Aggrey Kiyingi, where Erina filed a challenge the fact that Aggrey petitioned for divorce from Uganda courts instead of Australian courts where their domicile was. Also in Attorney General of Alberta v Cook, the Court of Appeal dismissed the suit on ground that it had no jurisdiction as the respondent had the domicile of Ontario and that an order of separation cannot amount into divorce which in turn means that a wife can have a domicile of choice separate from her husband. In Uganda, we ought to appreciate the fact that couples should be treated equally in marriage, therefore the wife ought to also have her own domicile in such times.
Laws on equality and how inheritance have been unfair. In the Constitution, article 31 provides for equal rights in marriage, during and after. Therefore, the Succession Act is contradictory to this provision. Section 27 of the Succession Act states that if a man dies without making a will, then the wife, or wives is entitled to 15% of the man’s property. These provisions were challenged in the Constitutional Court in law in the case of Advocacy for Women in Uganda v Attorney General. A number of legal issues were raised, the Court noted that section 27 makes reference to only a male deceased person, which is discriminatory. This presupposes that either females do not or cannot own property, which is contrary to article 26 of the Constitution on the right to all citizens to own property. The succession (amendment) bill thus seeks to align section 27 with the Constitution by recognizing women’s right to own and dispose their property at death as well increase the entitlement of the surviving spouse.
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It is also important for Ugandan laws to abide by the African Charter on human and people’s rights. Article 18 provides that the state shall have the duty to ensure the elimination of every discrimination against women and also to ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. On the laws prohibiting same sex marriages; I believe there is need to align the laws with conformity of the moral well being of the society. Unnatural sex despite having rights to freedom, it is the state’s mandate to provide a safe place for the rest of the citizens. Article 29 of the African Charter provides that the state shall preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation, and in general, to contribute to the promotion of the moral well being of society. Despite putting to account article 1(3) of the UN Charter that aims at achieving international cooperation in solving international problems of the social, cultural, humanitarian character, encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, the country ought to abide by its fundamental norm the Constitution.
. In conclusion, there’s a lot to be put to account in relation to the laws on marriage and divorce in Uganda. The societal changes, different beliefs, indeed the laws are outdated to a large extent and need to be subject to review and amendments to suit the changing times. Article 55 of the UN Charter states that for a view to the creation of conditions of stability and well-being there’s need for peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of people. The UN shall promote higher standards of living, full employment, and conditions of economic and social progress and development. In the same way the laws in Uganda ought to abide by article 2 of the Constitution that any laws against the provisions in the Constitution shall be declared null and void, with a common goal of achieving a better Uganda.
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