The Evolution of Matrimonial Property Law in Uganda: A Legal Analysis of Uhiriwe Peace Vs Kuuku Kagwa Paul & 2 Ors Divorce Cause NO. 118 OF 2017.

Introduction.

The law of matrimonial property in Uganda has undergone significant transformations in recent years, shaped by landmark cases and judicial interpretations. This evolution has clarified the definition of matrimonial property, the assessment of individual contributions, and the distribution of property upon divorce.

Judicial Transformations

In Muwanga v. Kintu (High Court Divorce Appeal No. 135 of 1997), Justice Bbosa defined matrimonial property and emphasized the importance of considering each spouse's contribution. he observed that “Matrimonial property is understood differently by different people. There is always a property that the couple chooses to call home. There may be a property that 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.”

The above gained judicial clarity in the holding of Justice  Mwangusya,  as he then was in the case of Kagga v. Kagga  High Court Divorce Cause No. 11 of 2005, (unreported), where he observed, that, “Our courts have established a principle which recognizes each spouse’s contribution to the 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 by the respondent.” Subsequently, the precedent of the Supreme Court’s decision of Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009), observing that “In assessing contribution to property may be direct and monetary or indirect and non-monetary.  Dr. Justice Esther Kisakye relied on the precedent of Muwanga v. Kintu High Court Divorce Appeal No. 135 of 1997 (unreported), where the court adopted a wider view of non-monetary indirect contributions by following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu [1990-94] EA 270, 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 couple’s joint property.

Cohabitees and Constructive Marriages

In Musa Kigongo V Olive Kigongo (HHCS No. 295 of 2015), Justice Namundi applied the doctrine of proprietary estoppel, recognizing the respondent's interest in the house despite no valid marriage. Indicating further that the defendant had acted based on the plaintiff's representation that they were husband and wife. The man had never objected to her stay in the house, making her believe that it was her home. He was therefore estopped from denying that she had an interest in the said home. Further, the woman (Olive) had referred to herself as Mrs. Kigingo without objection from Mr. Kigongo. She had indirectly contributed to the house including giving birth to two children. Without equity, cohabitees can only assert their property rights by demonstrating their contribution to property acquisition, effectively treating their relationship as a partnership.

In the case of Baryamureeba James V Kabakonjo & 6 Others (Civil Suit-2013/20) [2020] UGHCCD 27 (17 January 2020) is about a couple who lived together for 35 years, had children, and worked on land together. The Plaintiff wanted to sell the land, but the Wife also the defendant opposed it. The court had to decide if they were legally married, if the children were his, if the land was family land, and if he could sell it.

The court said that even though they weren't legally married, they were "constructively married" because they lived together for so long and had a family. This means they fit the definition of "family land" under the Land Act, which requires consent from both parties to sell. Dr. Justice Henry Peter Adonyo held 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”

That the law aims to protect people in long-term relationships from being deprived of their property rights. He ruled that the couple's land was family land, and the man needed the woman's consent to sell it. Refusal to Include a Spouse in a Will: Implications for Matrimonial Property

In the case of Kolya v Kolya (Civil Suit-2016/150) [2020] UGHCFD 4 (03 July 2020), the High Court of Uganda faced a challenge related to the exclusion of a spouse from a will. The plaintiff sued the defendant, seeking an order for the defendant to provide an account of the assets in the estate of the late Israel Kimomeko Kolya, as well as an order for the distribution of the property according to the will. Alternatively, the plaintiff sought the revocation of the letters of administration granted to the defendant and costs for the suit.

The defendant disagreed with certain provisions in the will, specifically the deceased's decision to give away the matrimonial home, to which the defendant had significantly contributed during its construction. The defendant argued that the late Israel Kikomeko Kolya had insufficient funds at the time.

The court had to determine whether the contested property was indeed matrimonial property, as claimed by the defendant, and the defendant's rights in succession.

Hon. Justice Namundi Godfrey referenced Justice B Kainamura's classification of property into five clusters in the case of Basheijja V Basheija & Anor D.C NO 12/2005 (2013). Justice Kainamura held that 'The home of the couple, irrespective of when it came into existence, amounts to matrimonial property.' Therefore, 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. This means that a wife (or couple) is entitled to matrimonial property, regardless of direct contribution, as long as the property was acquired during the marriage.

Justice Namundi also referenced Julius Rwabinumi Vs Hope Bahimbis (2013), stating, 'The deceased exalted the heir above the widow. A cultural practice that denies widows proprietary rights is discriminatory in nature.' Article 32(2) of the Constitution prohibits customs, cultures, and traditions that are against the dignity, interests, or welfare of women. Men and women have equal rights in marriage, during marriage, and at its dissolution (Article 31(1)). Furthermore, Article 21(2) forbids discrimination on grounds of sex, defined as 'giving different treatment to different persons attributable only or mainly to their description by sex...' (Article 21(3)).

Whereas in Adong Simon and others Vs Opolot David, Soroti Civil Appeal No. 46 of 2013, the court held that a widow has the right to dispose of inherited land as a surviving spouse, in accordance with Article 31(1), which confers equal rights on men and women at marriage, during marriage, and at its dissolution. Therefore, as death leads to the dissolution of marriage, the defendant, as a surviving spouse, has the right to inherit from her husband and benefit from his estate.

In conclusion, the plaintiff, as an administrator of the estate of the late Herbert Kolya, is not entitled to the property at Namirembe, which is matrimonial property that passed to the widow (defendant) upon her husband's death. She has the right to deal with it as she sees fit. A clause in a will that violates Article 31(1) and Article 21(2) of the Constitution of Uganda by discriminating against the spouse is unlawful.

The concept of making a will and attempting to sideline the spouse for biased and discriminatory purposes is firmly grounded in our family domestic laws regarding matrimonial property. The Landmark Case: Ambayo Versus Aserua

The Court of Appeal's landmark decision in Ambayo Versus Aserua (Civil Appeal No. 100 of 2015) established key principles:

1. Marriage does not automatically grant a spouse a half-share in matrimonial property.

2. A spouse's portion of matrimonial property hinges on their contributions to it.

3. Contributions can manifest in either monetary or non-monetary forms, or a combination of both.

4. Non-monetary contributions typically include "unpaid care and domestic work" performed by a spouse during the marriage, such as caring for children, the elderly, and sick family members, managing household chores, and cultivating food for the family's subsistence, among other activities.

5. When assessing the value of "unpaid care and domestic work" rendered during the marriage, the court should consider monetary valuation principles, akin to the value or cost of equivalent services available in the labor or service market.

6. Contributions made by one party towards the educational advancement of the other spouse during the marriage should be deducted from the beneficiary spouse's overall claim for "unpaid care and domestic work.

Recent Case Development of Uhiriwe Peace Vs Kuuku Kagwa Paul & 2 Ors Divorce Cause NO. 118 OF 2017 On 25th 10 day of April 2024 the High Court of Uganda presided over by Justice Alice Komuhangi Khaua determined a matter where the Petitioner, Ms. Peace Uhiriwe, and the 1st Respondent, Mr. Paul Kagwa Paul Kuuku, were married on December 16, 2005. They had no children together and lived in various locations, including Entebbe and Lubowa Housing Estates. The Petitioner left the matrimonial home in November 2013, citing the 1st Respondent's adultery and cruelty. The Petitioner claimed that several properties, including the matrimonial home, were jointly owned and sought to have them registered in both names. The 1st Respondent claimed that the marriage was a nullity since he was still married to another woman at the time of their marriage.

The primary issues before the the court were

1. Was there a valid marriage between the Petitioner and the 1st Respondent?

2. Are the listed properties matrimonial property, and does the Petitioner have an interest in them?

3. Did the Petitioner acquire an interest in the properties through proprietary estoppel?

4. Was the transfer of the matrimonial home to the 3rd Respondent lawful?

5. What remedies are available to the parties?

Holding of Court.

In resolving the first issue, the court found that the marriage between the Petitioner and the 1st Respondent was valid, despite the 1st Respondent's previous marriage to Ms. Jackline Muteteri, which was null and void due to her existing marriage to another man. Referencing the law under Section 11 of the Divorce Act, Cap. 249 the court held that “A husband or a wife may present a petition to the court praying that his or her marriage may be declared null and void.” Section 12 (1) thereof provides that: “The following are the grounds on which a decree of nullity may be made- (d) that the former husband or wife of either party was living at the time of the marriage, and the marriage with the previous husband or wife was then in force”

Although the 1st Respondent married the Petitioner in 2005, before the previous marriage was officially declared null and void by the court in 2006, the court ruled that the previous marriage was void from its inception, thereby making the 1st Respondent free to marry the Petitioner. The court also rejected the 1st Respondent's claim that he was coerced into marrying the Petitioner due to a supposed pregnancy, finding that he was fully conscious of his actions. Accordingly, the court concluded that the marriage between the Petitioner and the 1st Respondent was indeed valid, thus answering Issue 1 in the affirmative.

Resolving the 2nd Issue, the court held that,

The court took cognizant of the earlier precedents which have established that every individual has the right to own property, and this right is preserved even in marriage.

Parties to a marriage may bring individual properties into the union, and they may choose to transfer them to their spouse's name solely or jointly, making them joint property.

During the marriage, either spouse may acquire property solely or jointly with their partner. The court will treat each scenario differently when determining whether a property is matrimonial or individual. In instances where a property is in one spouse's name, the court will look for evidence of the other spouse's contribution.

In this case, the 1st Respondent denied making any representations to the Petitioner about owning properties jointly. He claimed that he had children from a previous marriage and his properties belonged to them.

The court found that the properties in question were individual properties and not matrimonial, as the 1st Respondent had not intended to make them joint properties by registering them in both names. The court also noted that the Petitioner's demands to be registered on the properties were a cause of the marriage breakdown.

The court observed as highlighted below

Courts have provided guidance on what amounts to matrimonial property and how it should be distributed.

In the case of Julius Rwabinumi versus Hope Bahimbisomwe SCCA No. 10 of 2009, which cited with approval the approach adopted by Bbosa J (as she then was) in Muwanga versus Kintu High Court Divorce Appeal No. 135 of 1997 (unreported), Justice Bbosa observed thus:

“Matrimonial property is understood differently by different people. There is always property that the couple chooses to call home. There may be property that 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 choose to call home and which they jointly contribute…”

It was further pointed out in the above Court decision that what amounts to contribution to earn a spouse a share in the property may be direct and monetary or indirect and non-monetary.

In the case of Rwabinumi (Supra), Hon. Justice Esther Kisaakye further observed thus:

“In my view, the Constitution of Uganda (1995), while recognizing the right to equality of men and women in marriage and at its dissolution, also reserved the constitutional right of individuals, be they married or not, to own property either individually or in association with others under Article 26 (1) of the Constitution of Uganda (1995). This means that even in the context of marriage, the right to own property individually is preserved by our Constitution as is the right of an individual to own property in association with others, who may include a spouse, children, siblings, or even business partners. If indeed the framers of our constitution wanted to take away the right of married persons to own separate property in their individual names, they would have explicitly said so…I am aware that any married person, in pursuance of the marriage vows he or she has made in church or in any other marriage ceremony, is at liberty to execute a legal instrument and to transfer into joint or sole ownership land and/or property he or she held prior to the marriage in favor of his or her spouse, either at the time of contracting the marriage or any time after the marriage has been celebrated. Similarly, a spouse can also transfer into joint or sole ownership property he or she individually acquired during marriage. In such a case, the spouse, in whose favor the transfer of land has been made, would clearly be entitled to register the land in his or her names or in the couple’s joint names as the transfer instrument may state. If this is not done as is the case in most cases, then the Courts will continue in divorce cases where ownership or sharing of property is at issue, to determine each case based on the Constitution of Uganda; the applicable marriage and divorce law in force at the time, in order to make the determination whether the property in question is marital property or individual property acquired prior to or during the marriage and to determine whether such property should be divided either in equal shares or otherwise, as the facts of the each case would dictate.”

In the case of Kamore versus Kamore [2000] 1 EA 81, which was cited in Ayiko Mawa Solomon versus Lekuru Annet Ayiko High Court Divorce Cause No. 1 of 2015, the Court of Appeal of Kenya presumed equality in two properties registered in the name of the husband and wife jointly saying at page 85 thus:

“Where property is acquired during the course of coverture and is registered in the joint names of both spouses, the Court in normal circumstances must take it that such property being a family asset is acquired in equal shares”.

In Ayiko Mawa Solomon (supra), Court further observed that:

“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contributions either direct or indirect towards the acquisition of the property” (Emphasis is mine).

From the above Court decisions, I make the following deductions:

1. Every individual has a right to own property;

2. The parties to a marriage may enter into the marriage with their individual properties;

3. Upon entry into marriage, they may choose to have them transferred to their spouse’s name solely or jointly in which case it becomes joint property;

4. During the subsistence of the marriage, either of the spouses may acquire property solely but choose to register it in his/her name jointly with his/her spouse;

5. The parties may jointly acquire property and register it in their joint names;

6. Either of the spouses may acquire property individually and exclusively of the other spouse;

7. Either of the spouses may acquire property with other people other than their spouse who may include children, siblings, or business partners;

8. The Courts will treat each of the above case scenarios differently when confronted with a task of establishing whether or not a particular property is matrimonial property or not;

9. In instances where the property is in the sole names of one of the spouses, then Courts are expected to look out for the contribution of the other spouse who is not registered on the property in the acquisition of the property in dispute. (Emphasis added). The contribution may be monetary or non-monetary, direct or indirect
   

On the contrary, the 1st Respondent denied having ever made such a representation to the Petitioner. He insisted that when he married the Petitioner, he made it clear to her that he had children from the previous marriage and his properties belonged to his children.

According to him, both her and the Petitioner had separate property at the time of the marriage and they agreed that each one of them retains their individual property. It was the 1st Respondent’s evidence that the Petitioner had property in Kiwatule and the 1st Respondent is not laying a claim on it. He wondered why the Petitioner is laying a claim on the properties which are personal and are kept for his children.

In light of the adduced evidence, it is my finding that none of those properties are matrimonial. They are individual properties and they belong to the 1st Respondent. If the 1st Respondent intended them to be matrimonial as the Petitioner wants this Court to believe, he would have had them registered in joint names upon the marriage especially given the fact that the 1st Respondent had children from his previous marriage. This would have removed any doubt. In the absence of that, it is my finding that at no time did the 1st Respondent intend to make the said properties matrimonial property. It is also important to note that in Matrimonial Cause No. 23 of 2005 between the 1st Respondent and Ms. Jackline Muteteri, the above-mentioned properties were a subject of contention and the Court made a finding that they were not matrimonial. I equally make the same finding.

I also need to point out that it was the uncontroverted evidence of the 1st Respondent that the cause for the breakup of the marriage between him and the Petitioner was the latter’s constant demands to be registered on the properties. The 1st Respondent testified that when he refused to succumb to the Petitioner’s demands over property,

From the adduced evidence, it is my finding that though the 1st Respondent and the Petitioner lived on the above property as husband and wife and though they chose to call it home, neither of them owns it. It therefore cannot be said to be Matrimonial Property. This Court is even unable to lift the veil of incorporation because from the Articles and Memorandum of Association, the 1st Respondent is neither a shareholder nor a director in FRK. The Directors/Shareholders are Diana Nyirabageni Kagwa and Norah Beata Kahimakazi Kagwa as per REX 18. From the Certificate of Incorporation, FRK is a company limited by shares and it was incorporated on the 11th day of January 2002 more than three years before the marriage between the 1st Respondent and the Petitioner. (see REX 17).

The Petitioner contended that she made a contribution to this property. She stated that when she got married to the 1st Respondent, the said property was a shell at the Wall plate and together with the 1st Respondent, they completed it and started staying there as their matrimonial home.

It was also the Petitioner’s evidence that during her marriage with the 1st Respondent, her family did not ask for dowry from the 1st Respondent and the reason for that was to allow the couple use what would have meant for the dowry to complete the matrimonial home.

This evidence was supported by her two witnesses. On the other hand, the 1st Respondent did not deny the fact that he did not pay dowry but argued that the Petitioner informed him that it is the tradition of the family not to ask for dowry from the intending suitors because they should not be seen to sell their daughters but had nothing to do with completing the matrimonial house.

The 1st Respondent also insisted that he came to occupy the house with the Petitioner when it was fully completed and what was remaining was to connect electricity and also furnish the house. The 1st Respondent further testified that when FRK gave him a house to stay in, water had been connected but electricity had not yet been connected and he requested the Petitioner to apply for electricity because he was busy and that explains why the electricity bill comes in the name of the Petitioner.

In a further effort to prove her contribution to the Lubowa House, the Petitioner adduced Invoice No. 27618 dated 28th June 2006 from Luwero Industries Ltd addressed to her for door frames, serving window frame, cupboard door frame, and wardrobe door frames all totaling Three Million Four Hundred and Fifty-Seven Thousand Seven Hundred and Eighty-Five Shillings (UGX 3,457,785). She also availed a corresponding Delivery Not.

In light of the evidence of the 1st Respondent that the Petitioner was constructing in Kiwatule and in the absence of the destination of the items on the documents themselves, it creates doubt and it is my finding that the Petitioner has not proved to the satisfaction of the Court that the said items were actually delivered to Lubowa and put on the house in issue.

During the locus visit, the Petitioner testified that she purchased tiles and paint from Nakasero and would also supervise the builders. However, she did not adduce any evidence of the receipts or the people from whom she claimed to have purchased the items from. I would have also expected her to at least adduce the evidence of some of the workers who completed the construction of the house to support her claim which was however not done.

The evidence adduced by PW1 and PW2 to the effect that the house belonged to both the 1st Respondent and the Petitioner is in my view not satisfactory in light of the overwhelming documentary evidence that the property belonged to FRK Ltd. I also believe that it was logical and reasonable for PW1 and PW2 to believe that the house belonged to the couple because the couple occupied it when it was new and immediately upon its completion and possibly the 1st Respondent did not disclose to them that it was not his property.

I am also unable to agree with the Petitioner that non-payment of dowry by the 1st Respondent is her contribution to the matrimonial home. This is because the 1st Respondent denied that and the Petitioner could not quantify how much money her family forfeited as dowry for it to amount to contribution towards the completion of their matrimonial home.

In light of the above, it is the finding of this Court, that the Petitioner did not prove that she contributed to the acquisition of the property in Lubowa whether direct or indirect to entitle her to a share therein. In the premises, I find that the property comprised in House No. 66 Type A, Lubowa Housing Estates, Plot 1053 Block 410, Kyadondo FRV 410 Folio 18 is also not matrimonial property. Resultantly, issue No. 2 is answered in the negative.

The Third Issue.

The issue at hand is whether the Petitioner has acquired an interest in the properties in question through proprietary estoppel. Court held that Proprietary estoppel arises when one person makes a representation to another, with the intention that it be acted upon, and the other person relies on it to their detriment. In this case, the Petitioner claims that the 1st Respondent represented that the properties would become matrimonial upon marriage, while the 1st Respondent denies making such a representation. The Court found that the Petitioner had not provided sufficient evidence to prove that the 1st Respondent made such a representation, and therefore, proprietary estoppel does not apply. Additionally, the properties were not registered in the Petitioner's name, and she was aware that the Lubowa property was acquired by FRK, a company in which the 1st Respondent is not a shareholder or director.

The Court distinguished this case from Haji Musa Kigongo v Olive Kigongo, where the defendant had contributed to the construction of the marital home and believed she had an interest in the property. In this case, the Petitioner failed to provide evidence of contribution or reliance on the representation. Therefore, the Court answered this issue in the negative. Remedies. The petitioner sought various remedies in the case, including dissolution of the marriage, cancellation of property registration, joint registration of certain properties, and payment of alimony and damages.

However, the court found that the petitioner did not provide sufficient evidence to support some of her claims.

Regarding the issue of the cows, the Petitioner failed to adduce any evidence to prove that she has ten (10) cows in the Ntungamo Farm. No evidence was also adduced as to whether the one cow given as a gift has since increased as a result of reproduction considering the fact that the marriage took place in December 2005. In light of the above, this Court is constrained to order for the release of only one cow which the 1st Respondent agreed to. The 1st Respondent is hereby ordered to hand over the one (1) cow to the Petitioner

The court dissolved the marriage on grounds of adultery by the respondent with another woman.

Regarding property disputes, the court dismissed the petitioner's claims for joint registration of properties and alimony, as she was gainfully employed.

Court held that,

In the case of Ayiko Mawa Solomon versus Lekuru Annet Ayiko High Court Divorce Cause No. 0001 of 2015 (Supra), Hon. Justice Stephen Mubiru had this to say on alimony:

“Marriage is viewed today as a shared partnership with important economic and non-economic expectations. Alimony conceptualizes spousal support as compensation earned by the economically disadvantaged spouse (normally the wife) through marital investments and as a means of eliminating distorting financial incentives in marriage, as well as a way to relieving financial need.

Under Section 24(1) of the Divorce Act, the Court may, on a Decree Absolute declaring a marriage to be dissolved obtained by a wife, order the husband to secure to the wife such sum of money, as having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable.

Alimony provides a secondary remedy and is available where economic justice and the reasonable needs of the parties cannot be achieved by way of equitable distribution of the matrimonial property. The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to support herself through appropriate employment are met. It is an order designed to afford economic justice between the parties.”

From the above Court decision, it is clear that the purpose of alimony is to ensure the wife who may be unable to meet her needs after the divorce is supported by the husband who is able to do that. The facts of the instant case do not warrant an Order of alimony because the Petitioner is gainfully employed by UNICEF and is earning relatively well. This prayer is therefore not granted

The court also dismissed the respondent's petition to nullify the marriage. Ultimately, the court made specific orders regarding property ownership and payment of a refund for curtains, and each party was ordered to bear their own costs. Conclusion. The evolution of matrimonial property law in Uganda has undergone significant transformations, shaped by landmark cases and judicial precedents.

These developments have clarified the definition of matrimonial property, the assessment of individual contributions, and the equitable distribution of property upon divorce or dissolution of marriage.

Key judicial decisions have established principles recognizing both direct monetary and indirect non-monetary contributions, including domestic services and caregiving.

The concept of "constructive marriage" has also emerged, recognizing long-term cohabitation as equivalent to legal marriage in certain circumstances.

Furthermore, courts have emphasized the importance of upholding constitutional rights, particularly gender equality and non-discrimination, to protect spouses from unfair treatment and deprivation of property rights.

The recognition of proprietary estoppel has also provided recourse for individuals who have relied on representations regarding property ownership to their detriment.

Recent cases demonstrate the complexities involved in property disputes within marriages and the need for a thorough examination of evidence and application of legal principles to ensure fairness and justice.

Ultimately, the evolution of matrimonial property law in Uganda reflects a progressive approach aimed at safeguarding the rights of spouses and ensuring equitable distribution of assets, promoting stability, fairness, and gender equality within marital relationships and contributing to a more just and inclusive society.

By Waboga David Lawyer & Researcher