“Cohabitation, no matter how lengthy or how genuine the parties’ belief in the existence of a marriage, does not create a valid marriage where statutory requirements are not met.” High Court Rules
- Waboga David
- Nov 16
- 9 min read
Introduction
Imagine this, a woman enters what she believes is a valid customary marriage in 2018, trusting the man who presents himself as single and eligible. The ceremonies are conducted, families participate, and life together begins. Unbeknownst to her, the man had already contracted a monogamous marriage in 1974, one that had never been dissolved, annulled, or otherwise terminated. When the matter reached court, the Judge was faced with a simple but decisive question: can a customary marriage stand when one party is still bound by a prior monogamous union?
Facts
The Petitioner, Bakabulindi Judith, and the Respondent, Dr. Jones Yosia Kyazze, commenced a romantic relationship around 2011, marked by periodic cohabitation. On June 7, 2018, the parties conducted a customary marriage ceremony at the Petitioner's parents' home in Kamuzinda, Masaka.
The Petitioner alleged that during the relationship, she invested significant time and financial resources into properties acquired by the couple, including land in Kyadondo Block 2737 Plot 1693 (claimed solely as hers) and the matrimonial home in Kyadondo Block 301 Plots 942, 943, and 944 at Munyonyo (claimed for equal sharing).
The relationship deteriorated due to the Respondent's alleged narcissistic behavior, including insults and psychological abuse. In June 2022, while the Petitioner was in the United States, the Respondent ejected her belongings publicly in view of neighbors, summoned her relatives to retrieve them, and declared the relationship over.
This incident prompted the Petitioner to file the divorce petition on March 10, 2023, seeking dissolution of the marriage, property declarations, costs, and other reliefs.
The Respondent denied the existence of a valid marriage, asserting a subsisting monogamous Christian marriage to Kibuuka Christine, solemnized on December 21, 1974, at St. Paul's Cathedral, Namirembe, a union never dissolved. He claimed the 2018 ceremony was a mere gesture to encourage the Petitioner to relocate from the USA to Uganda and that all disputed properties were acquired by him prior to the relationship.
The Respondent admitted non-disclosure of his prior marriage but argued it rendered the 2018 ceremony void and the Petitioner merely a cohabitant without spousal rights.
Issues Raised in the Preliminary Objections
Whether there existed a valid and subsisting marriage capable of dissolution.
Whether the court had jurisdiction given the Petitioner’s alleged foreign domicile.
Whether the petition was properly verified under the Oaths Act.
Whether the properties claimed constituted matrimonial property, and what remedies were available.
Submissions
The Petitioner did not file written submissions but relied on her petition and annexed photographs of the 2018 ceremony to plead the existence of a valid customary marriage. She averred contributions to the properties during the marriage's subsistence.
Counsel for the Respondent, emphasizing the first objection, submitted that the 2018 ceremony was void ab initio under Section 11(e) of the Customary Marriages (Registration) Act, Cap. 143, as the Respondent was already in a subsisting monogamous marriage. Reliance was placed on Elizabeth Nalumansi Wamala v. Tolly Kasande SCCA No. 10 of 2015 (Supreme Court), holding void marriages as non-existent in law.
Counsel invoked the maxim ex turpi causa non oritur actio (no action arises from a wrongful cause), per Makula International v. Emmanuel Cardinal Nsubuga (1982) HCB 11, arguing the court could not enforce obligations from an illegal union. A certified Marriage Register extract (Annexure R-1) proved the 1974 marriage's subsistence.
On the second objection, counsel argued the Petitioner's 2012 relocation to and citizenship in the USA changed her domicile, ousting jurisdiction under Section 2 of the Divorce Act. For the third, the verification was defective due to the Petitioner's non-appearance before the Commissioner for Oaths and signature inconsistencies.
On the fourth, absent a valid marriage, no matrimonial property existed; properties were pre-relationship acquisitions, and cohabitation conferred no spousal rights.
Legal Representation
Petitioner, Counsel Kiribwa Simon Peter & Halima Nabayunga (CCAKS Advocates)
Respondent, Counsel Berna Nakyeyune holding brief for Nasser Sserunjogi (Magna Advocates)
Court’s Findings
Court’s Findings
Validity of the Alleged Marriage
The Court held that the Respondent’s 1974 monogamous marriage was still subsisting at the time of the alleged 2018 customary marriage. Under Section 11(e) of the Customary Marriages (Registration) Act, any customary marriage contracted while a party is already in a subsisting monogamous union is void ab initio, and this consequence “operates automatically by force of law.” The Judge emphasized that “a void marriage does not need the courts to make it annulled… it is treated as if it never existed.”
In reaching this conclusion, the Court found that the Petitioner did not plead or prove any dissolution, annulment, or death in respect of the 1974 marriage, and the Marriage Register (Annexure R-1) enjoyed a presumption of authenticity. The Court rejected the Petitioner’s estoppel arguments, stating that
“the doctrine of estoppel cannot operate to validate a marriage that is void by statute. Where the law declares a union to be void, no amount of conduct by the parties can transform that void union into a valid marriage.”
The Respondent’s non-disclosure, while potentially amounting to bigamy under Section 142 of the Penal Code, did not affect the legal position. The Court emphasized that
“the existence of a ceremony, no matter how elaborate or genuine, cannot overcome the clear prohibition in Section 11(e).”
Cohabitation Cannot Create a Marriage
Justice Nagawa reaffirmed that cohabitation, regardless of how long it lasts or how genuine the parties’ belief in the relationship may be, cannot cure statutory invalidity:
“Cohabitation, no matter how lengthy or how genuine the parties’ belief in the existence of a marriage, does not create a valid marriage where statutory requirements are not met.”
Bigamy Concerns
Given the evidence of a subsisting monogamous marriage and the Respondent’s participation in a second ceremony, the Court directed the Registrar to forward the file to the DPP for consideration of criminal charges. It noted: “The Respondent may have committed the criminal offence of bigamy… this does not transform a void marriage into a valid one.”
Objections on Domicile, Jurisdiction, and Oaths Act
The Respondent’s objections on domicile (under Section 2 of the Divorce Act) and verification under the Oaths Act were rendered academic because there was no marriage to dissolve. The Court explained that where a marriage is void, questions of domicile “do not arise.” The objection regarding signature inconsistencies was noted but left for trial-level evidence, as such issues require expert testimony and cannot be resolved on a preliminary point of law.
Property Rights and Cohabitation
Although the Court held that matrimonial property principles apply only to valid marriages, it clarified that the absence of a legally recognized marriage “does not automatically extinguish all property rights between cohabiting partners.” Relying on Kabuye Robert v. Nanyonga Teopista (2025) and Kabogoza v. Bangi (2025), the Court affirmed that cohabitants may still claim equitable interests in property based on both direct and indirect contributions. Relevant considerations include the duration of cohabitation, financial input, domestic labour, childcare, and the timing of property acquisition. However, these issues could not be resolved as preliminary objections and required evidential scrutiny at trial.
Closing Position of the Court
The Court acknowledged the hardship suffered by the Petitioner but emphasized that its hands were tied:“The court is bound to apply the law as it stands. This is not a matter of discretion. It is a matter of law.”
Holding
The alleged customary marriage of 7 June 2018 is void ab initio.
Preliminary Objections Two and Three (domicile & verification) are moot.
Properties in issue are not matrimonial property as no marriage existed.
Registrar directed to forward file to the DPP for possible prosecution of the Respondent for bigamy under Section 142 Penal Code Act.
Divorce Cause 38/2023 dismissed.
Each party to bear their own costs.
Key Takeaways
1. A subsisting monogamous marriage invalidates a subsequent customary marriage.
Section 11(e) automatically voids such unions, no court order is needed.
2. Courts will not validate or enforce rights arising from an illegal or void marriage.
Even if parties believed the marriage was valid or cohabited for long.
3. Cohabitants can still assert property rights, just not matrimonial property rights.
These claims must be pursued under equitable principles, not Family law.
4. Bigamy remains a serious offence, and courts may refer culprits for criminal prosecution.
5. Preliminary objections can dispose of an entire divorce matter where the alleged marriage is void.
Gaps Left Unanswered by the Decision
Whether the Court Should Have Determined the Respondent’s Criminal Liability
The Judge only referred the matter to the DPP but did not address whether the Respondent’s conduct, knowingly contracting a second marriage, met the elements of bigamy under Section 142 of the Penal Code. The decision avoids clarifying what level of knowledge, intention, or fraud is required.
The Legal Consequences for the Innocent Spouse (the Petitioner)While the Court held the marriage void, it did not meaningfully address the Petitioner’s rights:
-Can she claim compensation for fraud or emotional/economic loss?
-Does she have any equitable remedies arising from cohabitation or joint property?
-What protections exist for an innocent party misled into a void marriage?
Status of Children (if any) Born from the Void Relationship
Though this case doesn't reveal whether the parties had children, amd although children of void marriages are protected under the Children Act and case law, the decision does not clarify how, custody, or maintenance would be handled in this situation.
The Standard of Due Diligence Expected of Parties Entering Customary Marriages
The Court did not elaborate on whether individuals have a legal duty to verify marital status before a customary ceremony, or what steps should reasonably be taken.
The Administrative Role of Local Leaders in Preventing Void Customary Marriages
The judgment does not address the responsibility of cultural leaders, local councils, or marriage witnesses who preside over customary unions.Should they verify marital status? Are they liable for facilitating void ceremonies?
Impact on Future Customary Marriage Registrations
The Court emphasizes the automatic voiding effect of Section 11(e), but does not guide registrars on:
How to verify subsisting marriages,
Whether the registry should require affidavits,
Or how to prevent fraudulent declarations.
Circumstances Where Long Cohabitation Might Trigger Presumptions of Marriage
The ruling states that cohabitation cannot cure a statutory prohibition, but it does not address whether long-term cohabitation could ever create rights, particularly where one party is innocent.
Remedies Specific to Fraudulent Inducement into a Void Marriage
The Court did not explore whether the petitioner could sue for damages for:
Misrepresentation,
Deceit,
Emotional distress,
Or costs incurred during the void ceremony.
Conclusion
This decision, while correctly declaring the 2018 customary union void by operation of Section 11(e) of the Customary Marriages (Registration) Act, exposes deep structural gaps in Uganda’s marriage law, gaps that continue to leave innocent spouses, especially women, without meaningful remedies. The Court’s referral of the Respondent to the DPP for possible bigamy charges is appropriate, but it also raises a broader and troubling question: Why does the Marriage Act itself contain no penal sanctions to deter fraud, concealment, or the deliberate contracting of void marriages? Basic legal theory, especially from the positivist tradition, tells us that a law without a sanction is merely a declaration, not a protective instrument. If marriage is a foundational social institution, then its regulatory framework should not merely guide, it should enforce.
Unlike the Succession Act, which expressly creates criminal sanctions for failures such as not filing an inventory or intermeddling with estates, the Marriage Act remains largely silent on the consequences of fraud in marriage. This silence leaves victims of deceitful unions with no direct statutory path to redress. The result is a legal system that punishes bigamy as a crime under the Penal Code, yet fails to impose corresponding civil liability or penalties within the Marriage Act itself, where such protection is most logically expected.
This gap leaves women like the Petitioner exposed to emotional, financial, and social harm with no guaranteed remedy.
Beyond criminal sanctions, the law must incorporate a civil or tort-based response to marital fraud. A spouse who knowingly induces another into a void marriage wastes years of their life, deprives them of economic security, and causes deep emotional injury. Damages, general, aggravated, or even punitive, should be available, not merely as compensation but as recognition of the dignity of the innocent partner.
The law already protects cohabitees and long-term partners through equitable doctrines, and these cases illustrate why similar protections must be codified.
In Musa Kigongo v Olive Kigongo, the Court relied on proprietary estoppel to protect a woman who, though not legally married, built her life on the man’s representations. The Court recognized that equity steps in where strict law leaves injustice. Similarly, in Baryamureeba James v Kabakonjo, the Court acknowledged a “constructive marriage” to prevent a long-term partner from being stripped of property rights simply because the formalities of marriage were absent. As Justice Adonyo rightly noted, the purpose of the law is to avoid absurdities, such as allowing one partner to exploit the other by hiding behind technicalities.
These cases expose a deeper legistlative crisis: Where statutes fail to protect vulnerable partners, courts are forced to stretch equitable doctrines to fill the vacuum. But justice should not depend on judicial creativity; it should be provided by clear, binding legislation. Uganda needs deliberate law reform that strengthens the Marriage Act by introducing:
Penal sanctions for fraudulent misrepresentation of marital status;
Civil liability (tortious damages) for inducing someone into a void marriage;
Statutory protection for long-term cohabitees, similar to constructive marriage doctrine;
Clear property rights and compensation mechanisms where one party suffers loss due to deceit.
Reforming the Marriage Act in this direction would not only align with jurisprudence and legal theory but also uphold the dignity and sanctity of the marriage institution.
Laws that protect women (and men), punish deceit, and compensate victims will deter exploitation and ensure that marriage remains an institution built on honesty, consent, and equality, not on concealment or manipulation.
In the end, affirming such protections is the only way to ensure that the institution of marriage is respected both in law and in lived reality.
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