One of the saddest things about marriage today is the fact that many couples have decided to dissolve their union. Divorce and separation are one topic that we cannot ignore and with the latest news coming from the Court of Appeal, the distribution of property is one topic that is in dire need of discussion.
Marital property under Ugandan law strictly refers to property that is acquired by persons who were legally married ignoring the fact that several parties within our borders are cohabiting. This is the foundation upon which this article is based. The case of Muwanga Vs Kintu attempted to define marital property, where it was stated that “Matrimonial property is understood differently by different people.
There is always a property that the couple chose to call home. There may be a property which may be acquired separately by each spouse before or after marriage. Then there is the property that 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.”
This definition was used to justify the previous decision made in the judgment upon which the recent civil appeal case of Ambayo v Aserua was based. The facts of the case were as follows; the appellant and respondent started cohabiting in 1989 to about 2005 when they solemnised their marriage. Within the said period, the couple sired four children and before officially getting married, they acquired land upon which their marital home stands and was purchased and all developments were made to make it a home.
The plot of land was registered solely in the name of the appellant as the purchaser. Proceedings for divorce started in 2012 upon which the judge issued a decree nisi to dissolve the marriage. The judge decided that even though the house was solely in the appellant’s name, it was marital property and it belonged to the couple in equal share. Therefore they were ordered to value and sell it.
The appeal’s outcome has set a precedent in our law as the appellant was aggrieved with the judgement. Under Ugandan law, a spouse is entitled to an equal share in the matrimonial home, property owned jointly, and property acquired during the subsistence of marriage which the parties jointly contributed. The previous judgement considered the plot upon which their marital home stood to be matrimonial property even though it was purchased before their marriage.
“A good marriage is one where each partner secretly suspects they got the better deal.”
–Unknown
So what is marital property?
With the case at hand, we agree with the judge. The state of the property in question is matrimonial property even though it was purchased before the appellant and respondent were married. The key is to look at the intention of the parties, in this case, it was to have it as a family home.
Here are the new rules pertaining marital property;
i) Marriage does not give a spouse automatic half-share in marital property upon divorce as was previously expected.
ii) A spouse’s share in marital property is dependent on his or her contribution to it.
iii) Contributions to marital property can either be monetary, not monetary or both.
iv) The non-monetary contribution consists of unpaid care and domestic work rendered by a spouse during the course of the marriage. When court is determining the value of unpaid care and domestic work, it will take into consideration the monetary value principles like the value of cost of similar or substitute services available on the labor or service market.
If you are anything like me, you may be wondering what family law truly entails, after all, a family should be pretty simple. An “ideal family’ consists of a mother, father, and probably two children, however, we must note that most people in Uganda alone do not experience this particular form of family.
The Objective XIX of the National Objectives and Directive Principles of State Policy in the 1995 Constitution of Uganda (as amended) defines a family as the natural and basic unit of society and is entitled to protection by society and the State and further goes on to highlight the rights a family has under Article 31.
Disagreements are common with every relationship and a family is no exception. Family Law can be defined as the portion of the law that governs the relationships between children and parents, and between adults in close emotional relationships.
Other things may change us, but we start and end with the family
Anthony Brandt
While family law in Uganda covers all aspects that concerns a family and all disputes that may arise in between, it is easy to think that Family Law is simply limited to marriage and succession.
Contrary to what many may think, there are so many parts of the law that can affect a family and its respective relationships ranging from land disputes to taxation. The trick to finding out whether your query or concern falls under this particular branch of law is pretty simple. Here are a few things that are tackled under family law.
Marriage is one of the most common sections of family law. The 1995 Constitution of Uganda states that a person of the age of 18 years and above has a right to marry and found a family and the pair are entitled to equal rights in marriage, during the marriage, and at its dissolution.
The decision to marry is very separate from the decision to live together and bear children together. A legal marriage under the laws of Uganda offers a couple of different rights that simple cohabitation would not. These include a right to inheritance, property, and family maintenance.
These rights are only given when a couple has married under the acceptable and legal forms of marriage in Uganda.
These include;
I) Customary Marriage
II) Civil Marriage
III) Islamic Marriage
It is important to note that cohabitation (where man and woman live together without going through any of the legally recognised marriages) is not recognised as a valid form of marriage in Uganda.
If you have gone through a divorce, you might have an inkling of what separation feels like. While the idea is that a couple will live happily ever after, the reality is that sometimes these relationships do not last. Now you may wonder what the difference between a separation and divorce is.
A separation does not end a marriage, but only suspends certain rights of the husband and the wife. The husband and wife are still considered to be married and neither of them can marry another person during the separation. In modern terms, a separation would be considered as ‘taking a break.’
A divorce on the other hand is a permanent dissolution of a marriage. It only applies to legally recognised marriages and its procedure depends on the type of marriage the parties had.
Whether a couple chooses a divorce or a separation, a permanent or temporary ending of a relationship can be a painful process especially if children are involved. In divorce proceedings more specifically, the custody of children and dissolution of property is up for discussion.
Children are a blessing to any family, this being so, they are one subject that is bound to be contentious. Article 257(c) of the Constitution and Section 2 of the Children ActCap 59 defines a child as a person below the age of eighteen years. This being said, family law will encompass all aspects of a child’s well-being, this includes custody and maintenance of a child.
Custody concerns the legal rules governing the right of children regarding whom to live with and maintenance is the right children have to know and be cared for by their parents or those entitled by law to bring them up. This is a question that will arise during a separation or divorce.
Adoptions refer to the legal and formal acceptance of another’s natural or biological child as their own, with the same rights and responsibilities attached thereto as if the child were your natural child, both in terms of child support and standing in intestates. This section is self-explanatory.
To adopt a child however comes with several prerequisites which include:
I) Age of applicant
II) Spousal consent
III) sex of the applicant
Of course, the dynamics of adoption are quite wide but in case you are looking to give a child a new home, a family lawyer would be the best person to hire.
Death is inevitable, and so the law of succession deals with the devolution and transmission of the estate of a deceased person. There are three types of succession under the law;
I) Testate succession which means the deceased left a will and valid testament of dissolution of their property.
II) Intestate succession where the deceased died without a will.
III) Partly testate and partly intestate succession.
In situations where there is a will, a will’s validity may be contested. It is easy to think that once a deceased has left instructions, then the rest would be smooth sailing. Unfortunately, if this was the case then we would be out of business.
It is all about a better measure for family!
ABM Chambers, House 42 | 54 Kanjokya Street, Kamwokya
+256 (0) 393 228 339 +256 (0) 414 530 844| law@abmadvocates.com | www.abmadvocates.com
Copyright ©2023 Apio, Byabazaire, Musanase & Co. Advocates. All Rights Reserved. Designed : Lwegatech
