DEVELOPMENTS ON THE LAW OF MATRIMONIAL PROPERTY AND THE NOTION OF CONSTRUCTIVE MARRIAGE IN UGANDA.

Uganda, unlike all her other common law counterparts has had a gradual process in making reforms concerning her domestic laws on Marriage and Family, Specifically the law relating to contribution and distribution of matrimonial property and cohabitation even though pressure is now mounting on the legislative arm of government to pass The Marriage and Divorce Bill

On Matrimonial Property in Uganda.

The Marriage Act[1]does not define matrimonial property; but citing Bbosa J in the case of Muwanga v. Kintu[2] defines matrimonial property, as

“Matrimonial property is understood differently by different people. There is always property which the couple chose to call home. There may be property which may be acquired separately by each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.”

Until recently, the courts of Uganda had not expedited the issue that deals with the contribution of matrimonial property in our domestic laws, probably, because we live in an African patriarchal society, and have settled with the presumption that most of the husbands in these settings have the duty and responsibility to provide for the family, build a home (where need be) and financially keep the family stable. With the wives providing at most emotional support, and for some (where need be) financial contribution to the family.

Fortunately, in 2013 the case of Julius Rwabinumi Vs Hope Bahimbisomwe, the Supreme Court of Uganda was able to fill in the lacuna that was missing in the Marriage Act.

The first was on assessing the contribution of matrimonial property by legally married people and second had to deal with the issue of non-contribution to the property attained during the lifetime of the legally married couples.

A look into the first case.

The case of Julius Rwabinumi Vs Hope Bahimbisomwe[3], which court had to decide on a contentious concept of the right to matrimonial property even when neither of the parties had made any form of monetary contribution in the life-time of the marriage.[4]

This case involved questions of ownership and division of property on divorce. In a unanimous decision, which Dr. Justice Esther Kitimbo Kisaakye gave the lead judgment, declared that upon divorce, a spouse could share in the property that was acquired either during the marriage or before the marriage, if she or he can prove contribution either to its acquisition or to its development.

The facts briefly are;

Julius Rwabinumi appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property.

Some of the Issues raised were;

1. Whether there is an established legal formula for division of property after divorce, and

2. Whether spousal contribution plays a role in such division.

After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce.

Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.

The ruling on the Issues…

Whether spousal contribution plays a role in such division.

Dr. Justice Esther Kisaakye ruled referring to the court decision of Kagga v. Kagga, High Court Divorce Cause No. 11 of 2005, (unreported), wherein Mwangusya, J. observed as follows:

“Our courts have established a principle which recognizes each spouse’s contribution to acquisition of property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic services. …When distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made be the respondent.”

She noted that,

The court in the above case further proceeded to order for the registration of 50% interest in the parties’ matrimonial house, and for the transfer of several other houses in favor of the wife, despite the Judge’s finding that the wife had only rendered domestic services, as opposed to the respondent husband who was “the financial muscle behind all the wealth.

Where the court awarded the wife, among others, a 50% share in a Farm measuring 154 acres. These decisions were clearly consistent with English cases such as Chapman v. Chapman, [1969] All E.R. 476, where the wife was held to have acquired an equal share in the property although she had not made an equal cash contribution to the acquisition of the property in question. The court found and held that the husband and wife had put all their financial resources into the pool to purchase their house without reserving any special interests.

How then do you assess contribution of marital property by spouses?

Dr. Justice Esther Kisakye observed that,

“In assessing contribution to property may be direct and monetary or indirect and non-monetary. citing the authority of Muwanga v. Kintu[5], where the Justice adopted a wider view of non-monetary indirect contributions by following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu[6] ,

In that case, Omolo, AJA., found that the wife indirectly contributed towards payments for household expenses, preparation of food, purchase of children’s clothing, organizing children for school and generally enhanced the welfare of the family and that this amounted to a substantial indirect contribution to the family income and assets which entitled her to an equal share in the spouses’ joint property.”

Therefore, in conclusion, Dr. Justice Esther Kisakye held that

“I entirely agree with the position taken by the lower courts in the above cases and in the Kivuitu case. These cases recognize not only a spouse’s direct or indirect monetary contribution but also a spouse’s non-monetary contributions, which enables the other spouse to either acquire or develop the property in question.”

The Latest Developments…

(Refusal to include the spouse on the WILL in the context to Matrimonial Property)***

The high court last year in the case of Kolya v Kolya[7] which facts briefly are, the plaintiff had sued the defendant for court to order the defendant to provide an account for all the assets of the estate of the late Israel Kimomeko Kolya, and for court to as well order the defendant to distribute the property in the estate of late Israel Kikomeko Kolya in accordance with the Will, and in the alternative, the letters of Administration granted to Defendant be revoked and, and lastly costs of the suit.

The fact that the defendant didn’t agree with some of the provisions in the Will because the deceased gave away the matrimonial home which she had contributed greatly to its construction since the late Isreal Kikomeko Kolya had insufficient funds.

Court had to first determine whether the contested suit property is a matrimonial property as claimed by the defendant and the rights of the defendant in succession?

Hon. Justice Namundi Godfrey made reference to Justice B Kainamura in the case of Basheijja V Basheija & Anor D.C NO 12/2005(2013) who classified property under five clusters and held that,

“The home of the couple irrespective of when it came into existence amounts to matrimonial property.”

He thus held that it is unlawful for men to dispossess their wives of matrimonial property by bequeathing it to their eldest sons in their Wills without their spouse's permission. Meaning that a wife (a couple) is entitled to matrimonial property whether they directly contributed or not. As long as that property was attained during the life time of their marriage. Making reference to (Julius Rwabinumi Vs Hope Bahimbis[8])

“In my view the statement above, the deceased exulted the heir above the widow. A culture practice that where the heir inherits matrimonial home denying widows proprietary rights is discriminatory in nature. “

According to Article 32 (2) of the Constitution customs, cultures and traditions that are against the dignity, interests or welfare of women are prohibited. Men and women are entitled to equal rights in marriage, during marriage and at its dissolution. as seen in Article 31(1) of the constitution.

Furthermore, Article 21(2) of the Constitution forbids discrimination on grounds of sex. Discrimination is defined under Article 21(3) as follows:

‘To give different treatment to different persons attributable only or mainly to their description by sex.....’

It was held in the case of Adong Simon and others Vs Opolot David, Soroti Civil Appeal No. 46 of 2013. that the widow had a right to dispose of the land she inherited from her deceased husband as surviving spouse in light of Article 31 (1) of the Constitution that confers on men and women equal rights at marriage, during marriage and at its dissolution.

Therefore, as death leads to dissolution of marriage, defendant as a surviving spouse has a right to inherit from her husband and she’s entitled to benefit from her late husband’s estate.

It was unlawful for the late Israel Kikomeko Kolya to bequeath the matrimonial property to his heir Herbert Lukanga Kolya without his spouse’s permission and the same could not devolve to the son when the widow survived him.

In conclusion, the plaintiff as an administrator of the estate of the late Herbert Kolya, is not entitled to the property at Namirembe. The same being a matrimonial property it passed on to the widow (defendant) upon the death of her husband Israel Kikomeko Kolya and she reserves the right to deal with it in any way she deems fit.

Such a clause in a Will is unlawful because it violates Art. 31(1) of the Constitution which guarantees equal rights of men and women in marriage, during marriage and at its dissolution (which includes death) and Art. 21(2) that forbids discrimination on grounds of sex.

It is not uncommon for matrimonial property to be held in the husband's name and for the husband to bequeath it to the eldest son subject to the wife's "right" to live there for life or until she remarries. The Judge reasoned out.

This therefore makes the position of Matrimonial Property even more firmly grounded within our family domestic laws to the concept of making a Will and trying to sideline the spouse for biased and discriminatory purposes.

Whereas on the notion of Constructive Marriage.

Different jurisdictions define spouses that choose to live together, acting as husband and wife even though they are not legally married. Some states in the USA and UK call this common law kind of marriage even though the habit is now dying out.

Whereas in Uganda, scholars chose to refer to this practice as Cohabitation (or the presumption of Marriage) until recently when High court Judge Hon. Dr. Justice Henry Peter Adonyo in Baryamureeba James V Kabakonjo & 6 Others[9], introduced a concept called “Constructive Marriage”

Though it should be noted that the ‘Marriage and Divorce Bill’, has triend to harmonize the concept of cohabitation (constructive marriage).

It should be noted that the bill was first tabled by the 7th Parliament, but later withdrawn for further research and the need to harmonize it's constraints within the law. In 2013, the Bill was “retabled” in the 9th Parliament and only 20 of the 178 clauses passed. Opponents argued that the purpose of this Bill is to protect only women and that it encourages spouses to file for divorce.[10] The members of parliament argued that cohabitation is an illegality that shouldn’t be addressed under the marriage laws.

Yet in light of Clause 127(1) of the Bill provided that,

"where a spouse acquires property before or during the marriage and the property does not fall within matrimonial property as defined in section 115, but his or her spouse makes a contribution towards the improvement of that property, be it monetary or in kind, the spouse without the interest shall acquire a beneficial interest equivalent to the contribution she or he made."

Fortunately, the high court has recently come out in the case of Baryamureeba James V Kabakonjo & 6 Others , introduced a new concept called "Constructive marriage" which tends to lean towards the prolonged discussions on cohabitation/presumption of marriage Uganda.

A Look into the Second Case.

The case of Baryamureeba James V Kabakonjo & 6 Others[11]that is quite distinctive from the first case introduces a concept called Constructive Marriage” on pg.27 of the Judgement.

In this case, court noted that cohabiting does not amount to a valid marriage according to the law regardless of the years spent living together.

However, in regards to marital property “Land” in particular and whether the husband could proceed to sell it if they were just cohabiting.

Dr. Justice Henry Peter Adonyo refused to use the strict approach and rule to interpret the land Act, which defines family land in the context of spouses that are legally married according to the laws in Uganda and rather ruled that,

“The Plaintiff and the 1st Defendant lived together for over 35 years, bore children and derived sustenance from the land. I find that the Plaintiff and the Defendant were constructively married and thus fit within the meaning of section 38 A.”

The facts briefly are

The plaintiff whose family lived a relatively normal and peaceful life in Kabale stated that the first defendant was not his legal wife and the second to the seventh defendants were not his biological children. The plaintiff alleged that the first defendant bore the children as a result of extramarital affairs. He also alleged that in a bid to procure treatment that he was undergoing he proposed to sell his land that was opposed by the defendants.

The ‘ISSUES’ raised were

1. Whether the plaintiff’s marriage to the first defendant is legal

2. Whether the second to the seventh defendants are his biological children.

3. Whether the suit land constitutes family land

4. Whether the plaintiff has a right to dispose of part or the whole of the land

5. Whether the plaintiff is entitled to the reliefs sought

Dr. Justice Henry Peter Adonyo in resolving whether the couple was legally married refereed to the Marriage Act of Uganda which recognizes traditional, church, civil and Hindu marriages but does not recognize cohabitation. He therefore stated that even though the couple had lived together for about 25 years she was not his wife but rather his girlfriend.

“The fact of this relationship and the resulting issues of the relationship is not disputed by any of the parties in this dispute. What is vehemently disputed by the plaintiff is that the 1st Defendant was not his legally wedded wife but merely a girlfriend who resided with him all those years at his ancestral place and bore him seven children which he allegedly sired beginning 1970 until after 2005”

The learned Judge went in detail to explain the importance of a customary marriage ceremony; he resolved the issue by stating that,

“Given the above concrete evidence to prove any existence a of marriage as required and even defined either under Marriage Act Cap 251 or the Customary Marriages 19 (Registration)Act this court is unable to determine the existence of any valid marriage between the plaintiff and the 1st defendant as provided for by the various laws. I do so find.”

Secondly, on whether the second to the seventh defendants are his biological children.

DNA test results from the government analytical laboratory showed that the plaintiff was the biological father. As also seen in (In Re Nassozi Immaculate (Child) Miscellaneous Application No. 208/2014 [2015] UGHCFD 1(12 January 2015)

On whether the suit land constitutes family land

Court ruled that according to Section 38 A (4) of The Land Act Cap – laws of Uganda defines family land as;

Section 38 A (4) of the Land Act:

“….Family land” means land— (a) On which is situated the ordinary residence of a family; (b) On which is situated the ordinary residence of the family and from which the family derives sustenance; (c) Which the family freely and voluntarily agrees shall be treated to qualify under paragraph (a) or (b); or (d) which is treated as family land according to the norms, culture, customs, traditions or religion of the family;”

He ruled that,

“The evidence on record indicates that the family land in this case includes not only the homestead (the Plaintiff states that this land was inherited from his mother) but also has a farm, and other plantations. As such, for all intents and purposes the Plaintiff, the 1st Defendant ordinarily reside on this land”

He further observed that section 38 A of the amended Land Act provides for the security of occupancy on family land. The broader import of this section of the law is to give security to spouses.

“The evidence on record fully places the suit land under the provisions of section 38 A of the Land Act[12].

This court accordingly finds that the suit land falls within the definition of family land under the Land (Amendment) Act 2004. As such it cannot be the subject of a sale without the consent of the other party.

Section 38 A (1), (2), (3) of the Land (Amendment) Act provides for security of occupancy on family land. The broader import of this section is to give security to

In the instant case, although the court did not find sufficient proof of marriage, the entire section must be interpreted broadly to include even those that are not married as per the laws governing marriages in Uganda.

Ruling on Constructive Marriage

Dr. Justice Henry Peter Adonyo ruled that

“The intention of the legislature was to avoid situations where one party to such unions would try to deprive another of their rights to property through claims that they are not legally married. As such in this situation before me, the court will avoid a strict interpretation of the section, or of the definition of the term ‘spouse’ to prevent absurdities. “

The Plaintiff and the 1st Defendant lived together for over 35 years, bore children and derived sustenance from the land. I find that the Plaintiff and the Defendant were constructively married and thus fit within the meaning of section 38 A”

Thus since it amounted to family land consent was required.

That indeed the plaintiff and the defendant had no legally binding marriage,

For the full case, you can read it on that link https://ulii.org/ug/judgment/hc-civil-division-uganda/2020/27

In conclusion,

The 2 cases share one similarity, which is; our laws do not sanction the practice of cohabitation or its silent existence regardless of how much time both spouses spend together until a comprehensive amendment is introduced in our domestic laws relating to marriage in Uganda.

The other point to notes is that when a person goes ahead and cohabits with another for a period of time to the extent of accumulating property as a cohabiting couple, with or without children. Courts shall presume that they are constructively married for the sake of dividing this property or properties if the need ever arises on the matter of marital property and contribution to it during the lifetime of their staying together with the presumption of marriage,

Lastly, where they (the cohabiting couples) have a family and derive their sustenance from a certain piece of land, the consent of the wife/wives is very important since there is a presumption of marriage (constructive marriage) and the welfare principle of the children if they happen to be left homeless during this chaos (separation).

by

Waboga David (A student of Law at UCU)

[1] The Marriage Act Cap 251 [2] Muwanga v. Kintu High Court Divorce Appeal No. 135 of 1997 (unreported) [3]Julius Rwabinumi Vs Hope Bahimbisomwe Civil Appeal No.10 of 2009 [4]https://www.mmeg.org/s/Kisaakye-MMEG-Presentation-March-28-2017.docx [5] Supra 2 [6] Kivuitu v. Kivuitu, [1990 – 19994] E.A. 270 [7] Kolya v Kolya (Civil Suit-2016/150) [2020] UGHCFD 4 (03 July 2020 [8] Supra 3 [9]Baryamureeba v Kabakonjo & 6 Ors (Civil Suit-2013/20) [2020] UGHCCD 27 (17 January 2020) https://ulii.org/ug/judgment/hc-civil-division-uganda/2020/27 [10] Ibid. [11] Supra 9 [12]See also Tumwebaze vs Mpeirwe & Another HCT-05-CV-CA[12]039/2010 [2013] UGHCLD 9 (8 February 2013)