FAMILY LAW (1) NOTES

There are two types of families, i.e. nuclear including father mother and children and extended including uncles, aunts and grand parents. According to Bromley’s, a family is a basic social unit constituted at least by two people whose relationship may fall in;

a) Husband and wife.

b) Two persons living together as if married.

c) Parent living with children.

d) Brother Sister and other relations.

FUNCTIONS OF FAMILY LAW

a) Protection of the weak members of the family, i.e. physical, social or economic protection

b) A mechanism for resolution of disputes

c) Confers status, privileges and rights

d) It allows property administration, adjustment and division

MARRIAGE

Article 31 of the constitution regulates the right to marry; it provides that, “Men and women of the age of eighteen years and above have the right to marry and to found a family…” This Article therefore provides sex and capacity of marriage.

In Corbett v. Corbett, two parties went through a ceremony of marriage and the petitioner knew the petitioner was male at birth and had undergone sex change. 14 days later the petitioner applied for nullification of marriage.

Issue, whether there was marriage?

Held, while sex is an essential determinant of a relationship called marriage, it is not the only essential element, but however sex is a characteristic that makes sex distinguished from other relations and so there was no marriage.

*Balfour v. Balfour

A wife alleged that they entered an oral contract where the husband agreed to make the wife an allowance of £30 a month. The two parties had not at that time agreed to live apart but did so frequently when differences arose between them. In an action by the wife against the husband to recover money which she claimed was due to her under the agreement, the alleged consideration for that agreement being a promise by her to support herself without calling upon the husband.

Held, there was no contract in legal sense, the alleged parole contract was no more than a mere arrangement between the husband and wife living together in intercourse and the parties never intended to make a bargain that could be enforced in law. Hence there was no contract for maintenance.

PROMISES TO MARRY

These are legal implications that arise when one party makes inferences or commit that commit them to marriage. Promises to marry can be enforced in particular circumstances, however they need not be in writing since they can be inferred.

Promises have to be proved and corroborated.

Woodman v. Woodman

The plaintiff sued to recover damages for breach of promise to marry; she used three letter evidence, i.e. one by herself, the second by her brother in law asking the defendant to make his position clear and third by the pastor where the plaintiff prayed.

The defendant did not answer any of those letters. The plaintiff averred that silence amounted to consent, she also relied on the fact that she picked a ring that belonged to the defendant but he had not asked for it.

The court did not find it satisfactory to amount to a promise and silence did not amount to acceptance. All circumstances must be looked into before judging a case.

Larok v. Obwoya

The defendant made a promise he didn’t honour on the material date. The plaintiff established a breach successfully that enabled her to obtain damages for emotional hurt and reduction of marriage chances.

However, it is important to note that promises to marry are not enforceable if they are against public policy.

Spiers v. Hunt

The defendant promised to marry the plaintiff on the death of his wife which was contrary to public policy.

Held, to hold such a contract enforceable is to introduce into social life an immoral principle and it is only in the most corrupt conditions of society that such an agreement could be tolerated as lawful.

Notwithstanding the above, there are two exceptions to this rule;

i. If the plaintiff can show she lacked knowledge

Shaw v. Shaw

The plaintiff was a widow when she met the deceased who claimed to be a widower and they agreed to marry, oblivious to the plaintiff, the wife of the deceased was alive at the time and on the demise of the deceased, the plaintiff learnt that they were not married and brought an action against the administrators of the estate of the deceased who pleaded limitation Act and contrary to public policy since the wife was still alive.

Held, promise to marry implied warranty that the deceased was in a position to do so which warranty continued throughout the deceased’s life time and the plaintiff’s right of action was not extinguished.

The plaintiff being unaware at all material times that the deceased was married, the court was not under duty to raise the question whether the promise to marry was unenforceable as contrary to public policy and the action was maintainable.

ii. If the promise to marry was made after decree nisi had been made;

Fender v. Mildmay

The respondent’s wife petitioned for a divorce due to the respondent’s adultery with the appellant. On two occasions after declaration of decree nisi but before declaration of decree absolute the respondent promised to marry the appellant, after declaration of decree absolute the respondent refused to marry the appellant.

Held, there was no rule of public policy which prevented the contract from being enforced. The enforcement of a contract is not against public policy unless it is likely to lead to an injurious action.

The whole position of married parties is changed and fixed not by a mere separation or lodging a petition for divorce, but by a pronouncement of decree nisi and the further period of waiting after the decree is imposed in the public interesting order to secure full disclosure before the court.

REMEDIES

Damages, i.e. general for hardship or injured feelings for example in Larok v. Obwoya, punitive (exemplary) and special damages i.e. demand for a return of a thing. Cohen v. Seller, the plaintiff demanded the return of the ring.

FORMATION OF MARRIAGES

The laws of Uganda recognise;

1. Civil/ Christian marriage

2. Customary marriage

3. Islamic marriage

4. Hindu marriage

CIVIL/CHRISTIAN MARRIAGES

A marriage is an agreement between a man and a woman which imposes rights and duties between them and creates a recognised relationship governed by the marriage Act.

• - Under section 6, one party must give notice to the registrar or the person in charge of a church.

• - The notice must be posted for public knowledge for at least 21days according to section 9.

• - According to section 10 the registrar issues a certificate authorising this marriage.

• - If marriage is not done within three months of the notice a fresh notice is needed according to section 11.

• - Under section 10 a number of things have to be satisfied

One of the parties must be a resident of the district for at least 15days.

Both parties must be 21years and above unless one party is a widow or a widower.

If they are less than 21years parental consent is necessary.

They should not be related. Neither party should have been married under customary law, unless it is the person in question transferring from customary to civil.

• Section 13 allows a person to lodge a caveat prohibiting marriage.

• According to section 17 there is need for written consent by the father, if he is dead, insane or absent from Uganda, the mother or the guardian may give the consent.

However the consent must not be maliciously withheld.

…………………….vol 19 2 K L R 98

Whether the mother was competent to give consent of marriage of her minor daughter? The court held that the mother was competent to give the consent.

There are procedural requirements

1. The place where the marriage is celebrated must be licensed i.e. place of worship or the office of the registrar.

2. The marriage must be celebrated by a recognised minister or a registrar, section 20

3. The marriage must be celebrated with open doors between 8:00am and 6:00pm

4. There must be two witnesses apart from the minister celebrating and there after filling of certificate. Section 20(2)

Nature of marriage

The nature of civil/Christian marriage is monogamous.

In Hyde v. Hyde, it was stated that marriage is the voluntary union for life of one man with one woman to the exclusion of all others.

The marriage Act creates offences for failure to comply with this provision e.g. Bigamy and are liable for imprisonment for a period of not more than 5years. Section 31

False pretence

False declaration

Chard v. Chard

A woman married someone else without stopping a subsisting marriage, her husband had been in and out of prison, she presumed the husband was dead and married.

Held, once it was shown that the wife was married, the burden was on her to prove that the marriage had been dissolved through death or otherwise. The court could not make a presumption hence the second marriage was null.

DOMICILE

It refers to habitation in a place with the intention of staying there forever unless circumstances may occur to alter this.

……………….1843 All ER 460

• Domicile determines the validity of marriage

• The laws governing different people

• It determines property rights

• Nationality of children

• It is also important in divorce proceedings

Under section 1 of divorce Act, courts in Uganda have no jurisdiction to entertain divorce petitions of marriages celebrated outside Uganda unless the petitioner is domiciled in Uganda.

Types of domicile

1. natural domicile (domicile of origin)

A child acquires domicile of origin from the father and if born out of wedlock from the mother.

1. domicile of choice

Acquired when one is of the age of majority

Thornbill v. Thornbill

The husband petitioned the dissolution of his marriage on his wife’s adultery. The man was a non Ugandan, the petitioner was born in Wales lived in Ceylon, educated in the United Kingdom and moved to Uganda where he stayed for 4years. He had shares in a tea company worth £7000 and had intention of making Uganda his home and wanted to buy a house in Kampala. He however stated that if the tea company could not work, he would move to another part of the world.

Held, he had acquired domicile of choice despite living in a hotel.

1. Dependent domicile.

This is mainly in common law i.e. Acquired by marriage

Gordon v. Gordon

King v. King

Joy Kigundu v. Aggrey Awori

VOID & VOIDABLE MARRIAGES

There are circumstances where a marriage may be considered invalid.

A void marriage is one which will be regarded by every court in every place which the existence of the marriage in issue has never taken place ab initio, and can be treated so without any party asking for a nullity.

A voidable marriage is one recognised by the Act. It is regarded by the courts as valid (subsisting marriage) until the day it is declared null.

A marriage is void if it violates formal requirements of marriage and it is voidable if it violates formal requirements. A voidable marriage can be annulled at the instance of the innocent party.

In the case of a voidable marriage which is annulled, the declaration of a nullity acts retrospectively. For divorce the decree acts retrospectively from the day the decree is declared absolute.

Section 34 provides situations when marriage will be declared null and void;

(1) No marriage in Uganda shall be valid which, if celebrated in England, would be null and void on the ground of kindred or affinity, or where 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 marriage is had.

(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration—

(a) In any place other than the office of a registrar of marriages or a licensed place of worship, except where authorised by the Minister’s licence;

(b) Under a false name or names;

(c) Without the registrar’s certificate of notice or Minister’s licence duly issued; or

(d) By a person not being a recognised minister of some religious denomination or body, or a registrar of marriages.

(3) No marriage shall, after celebration, be deemed invalid by reason that any provision of this Act, other than the foregoing, has not been complied with.

Marriage will also be null and void under section 12 of Divorce Act Cap 249

1. Where there is permanent impotence

2. If parties are within prohibited kinship

3. One party is of unsound mind

4. If one party has a husband or wife still living and the marriage is still subsisting

5. If consent was through force or fraud

6. It will also be void if the female has not attained 16 and the man 18years of age (subject to Article 31(1))

In Harthan v. Harthan, it was agreed that a voidable marriage can be annulled at the instance of the innocent party.

In Kelly v. Kelly, the issue of conditional consent was dealt with. The parties were Jews who underwent marriage ceremony in the English way. The woman contested the marriage saying she was waiting for a Jewish ceremony and said she did not know she was married in the English way. The court granted her the order since she did not know that the English ceremony was one of marriage ceremonies.

…………………………1962 3 All ER 1108

K v. K, if so act of sex is so unnatural to be described as sex then there is no consummation.

S v. S, the husband contended the wife’s incapacity to consummate the marriage; this was due to abnormally thick hymen which could be rectified by a minor surgical operation.

Held, wilful refusal to consummate a marriage implies a conscious act of volition, which is to be distinguished from neglect that may be no more than a failure or an omission to do what has been suggested; in the present case the wife had not come to a settled and definite decision and the husband had failed to prove that she had wilfully refused to consummate the marriage. Accordingly the husband’s petition was dismissed and the wife was granted a divorce on the ground of the husband’s adultery.

Scott v. Scott

The marriage had not been consummated but prior to the marriage ceremony; the woman had told the man that she had distaste for sex, but he agreed to marry her hoping to change her without success, he eventually decided to remarry and applied for nullification on the basis of non consummation.

Held, a decree of nullity was refused because the husband had fully accepted the marriage despite the absence of sexual intercourse, there was a bar arising from his own conduct.

Morgan v. Morgan

The husband petitioned the court on the ground of his own impotence contrary to the agreement before marriage that the parties were marrying for companionship and nothing else.

Held, the husband was not entitled to a decree of nullity on the ground of his impotence because having regard to the companionship agreement and the age of the parties when marriage took place, it would be contrary to justice and public policy to allow the husband to plead his own impotence and mental reservations could not in English law invalidate a marriage that was duly celebrated, and accordingly the marriage was valid notwithstanding the companionship agreement.

R v. Algar

A voidable marriage was regarded as valid and subsisting until it had been avoided at the instant of the aggrieved party; accordingly a spouse who had been validly married but who had subsequently obtained a decree of nullity on the ground of the others impotence was not a competent witness against that other spouse on his or her trial for a criminal offence (forgery) committed during the marriage.

Approbation of voidable marriages

This occurs in situations where one of the parties is fully aware of facts making the marriage voidable and conducts himself although she is the innocent one as though the marriage is valid. She maybe estopped from revoking the marriage.

The conduct amounting to approbation is a matter of court to decide.

K (P) v. K

The issue of approbation was discussed and in this case the marriage had never been consummated due to the husband’s impotence. The marriage lasted for 14years and the petitioner thought that the condition would change the court agreed to nullify the marriage however in Scott v. Scott this view was rejected because the husband had fully accepted the marriage despite the absence of sexual intercourse, there was a bar arising from his own conduct.

Under section 13 of the Divorce Act, the issue of children gotten before nullification is dealt with. It provides that “Where a marriage is annulled on the ground that a former husband or wife was living, and it is found that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or where a marriage is annulled on the ground of insanity, children begotten before the decree nisi is made shall be specified in the decree, and shall be entitled to succeed in the same manner as legitimate children to the estate of the parent who at the time of the marriage was competent to contract.”

Legal effects of marriage

1. The incapacity to marry

Basing on Hyde v. Hyde, marriage is monogamous and during its subsistence one can not purport to enter another relationship.

2. Acquisition of status

The wife acquires the right to use her husbands name but can not be compelled.

It was thus stated in Fendal v. Goldsmith, while marriage confers a right to the wife to use her husbands name, she can not be forced to do so but if she desires she can use it.

3. Domicile

The wife acquires the domicile of the husband as depicted in Joy Kigundu v. Aggrey Awori, the court observed that during the lifetime of the husband, the wife can not acquire domicile of her own from that of her husband because the domicile of a married woman depends on her husband’s domicile and since her husbands domicile was in Kenya her domicile also was in Kenya and therefore she could not sustain divorce proceedings.

4. Legitimacy of children

The law does not make a distinction between legitimate and illegitimate children when it comes to inheritance. Therefore in Kajubi v. Kabali, although there was no valid marriage, the children were entitled to inherit from their deceased father.

5. Consortium i.e. companion, love and sex

Both parties have a right to consortium and both can sue anyone who destroys this right. In Kremezi v Ridgway, while in Greece, an English naval officer entered into a contract of marriage with a Greek girl, resident in Athens. Later the contract was renewed in England, with the intention that the new contract should be in substitution for the previous one. The marriage was to take place in Athens but the parties intended to make their matrimonial home in England. In an action for breach of promise of marriage:

Per Hilbery J: while it is true that this peculiar type of contract—the exchange of mutual promises to marry—ends, so far as legal enforcement is concerned, on the performance of the marriage ceremony, none the less the performance which the parties contemplated at the time they exchange mutual promises is not exhausted by the performance of a mere ceremony. No young woman when she accepts a proposal of marriage and a contract is formed, would be satisfied if she were told that all the young man is undertaking by the promise is to go through a form or a ceremony with her. What the parties intend is an exchange of mutual promises to become one another’s spouses—to become husband and wife with all that that should entail.

In Newton v. Handy, it was held that a married woman has a right to consortium from the husband and can recover damages from anyone who violates this.

Section 20 of Divorce Act envisages restitution of conjugal rights. It thus provides that if the husband or wife without reasonable excuse withdraws from the society of the other, the aggrieved party may petition the court for restitution of conjugal rights.

However it is important to note that a court can not order specific performance apparently because you can’t supervise people having sex or coerce them into the same.

If there is a reasonable excuse as to why a party has left then the court can order separation. In R v. Jackson, the husband got a decree of restitution of conjugal rights and the wife refused to comply so he abducted her, the state set out her case to secure her release and the court held that the husband could not keep her in confinement against her will.

6. Right to recover damages

If death of a spouse is occasioned by negligence of a third party, then the aggrieved spouse can institute a suit for damages against the third party. In Best v Samuel Fore, the husband was involved in an accident which impaired his sexual performance, the wife sued the person who caused the accident and succeeded in loss of consortium, other marital rights and inability to continue getting children.

In Amos Senyakazana v. AG, the husband sued the government for the death of his wife caused by government vehicle; he was awarded damages for loss of consortium and deprivation of company.

7. The right to maintenance

This is mainly for the wife, under the law the husband has a duty to maintain the wife e.g. alimony (financial provision made by the husband to his wife when they are living apart). The husband’s is conditional on continuing to enjoy conjugal rights; these rights include inter alia living in a matrimonial house, clothing and food.

In National Provincial Bank v. Ainsworth, the husband and the wife were living in the house the husband deserted and the wife remained in occupation of the house. After desertion the husband mortgaged the house and the bank took it.

Held, the wife had no right in matrimonial home, she was a mere licensee of the husband, she had equity enforceable only against the husband and not third parties. It was also decided that the wife should be moved out of the house if the bank acted genuinely and in good faith.

Ferris v. Weaven, [1952] 2 All ER 233

A husband, after deserting his wife, sent her a letter in which he said: “I will carry on paying on the house [the matrimonial home] providing you do not annoy me. If you come here, I will not pay another penny, and don’t forget you have my house of furniture.” The wife continued to reside in the house and the husband paid the rates and certain mortgage instalments in respect of it. After ten years the husband sold the house for £30 to a purchaser who bought it with full notice of the arrangement between the husband and the wife and of the fact that that arrangement had been, and was being, acted on, and with the intention of enabling the husband to defeat any right which the wife had as a result of that arrangement. In an action by the purchaser for possession of the house,

Held – The wife was a licensee with a contractual right to remain in the house as a result of the arrangement with her husband, and in the circumstances the purchaser was not entitled to recover possession of the house because he had acted in bad faith.

Stewart v Stewart [1947] 2 All ER 813

On an application by a husband for possession of the matrimonial home the county court judge found as a fact that the husband was the tenant of the premises.

There was evidence that the parties had not cohabited for a considerable period, that they were making counter accusations against each other, and that the husband had filed a petition for divorce on the ground of the wife’s adultery. The judge made an order for possession within two months, which might have resulted in the wife being ejected from the matrimonial home, and refused to make that order conditional on the husband providing accommodation elsewhere for the wife. On appeal it was held that the county judge had properly exercised his discretion.

When does the duty to maintain the wife cease?

1. When the wife commits a matrimonial offence e.g. adultery

2. Desertion by the wife without reasonable justification.

3. Death of the wife distinguishes the right to maintain.

Under common law the husband is liable for burial expenses even if the wife died in desertion. However it is important to note that where the wife leaves an estate sufficient to pay her expenses for burial the husband is not liable for the same.

On the same note it is trite law to argue that if the husband dies first, the executors of his estate have no duty to maintain the wife. Therefore in Langstone v Hayes [1946] 1 All ER 114

By a separation deed which recited that the parties had agreed to live separately and apart, the husband covenanted to pay the wife “for her separate use and for the maintenance and support of herself a clear annuity of £104 payable by weekly payments of £2 each until determined. On the husband’s death, his executor discontinued the weekly payments. The wife brought an action against the executor.

Held, there was no general rule of law that a covenant in a separation deed was intended to bind the estate of the covenantor; whether such an obligation was intended depended on the terms of the particular contract. In the present case, the obligation to pay the annuity did not pass to the executor, since the husband’s covenant could not be construed as intended to continue after his death.

Obiter, in Tanzania there is dual obligation. If the wife is financially stable she can be ordered to pay expenses when the husband is sick, impaired, imprisoned or advanced in age.

How can a wife enforce maintenance?

a. Enforcing her right of agency of necessity.

This arises where the wife collects groceries and goods on credit and the shop owner demands payment from the husband. The wife is treated as the husband’s agent and agency is only for necessaries of life.

In Callot v. Nash, it was stated that necessaries are articles that are reasonably needed and in the style of living set by the husband. In this case a firm supplied dresses for the wife that was not paid for and the firm sued the husband on agency. The husband argued that the wife had her private means.

Held, the existence of the private means of the wife while relevant, it did not exonerate the husband from paying the bills.

The decision in Callot v. Nash was overruled in a later case and is it stands is a bad law. This was captioned in Biberfeld v. Berens, A wife, who was compelled to leave her husband by reason of his cruelty, borrowed money from the plaintiff for the purchase of necessaries. The wife possessed savings certificates worth £1,125, a balance of £37 at her bank, a co-operative society’s dividend of £7 5s 9d, and jewellery worth £250. The plaintiff sued the husband for repayment of the money lent on the ground that the wife had borrowed it as the husband’s agent of necessity.

Held – In considering whether a wife, who has been compelled by her husband’s conduct to leave him, is her husband’s agent of necessity, regard must be had to her means; in the present case the wife had assets which she could have been reasonably expected to use to pay for necessaries; and, accordingly, she was not her husband’s agent of necessity and the plaintiff’s claim failed.

In Nanyuki Trading stores v. Peterson

The wife had purchased some liquor which the husband refused to pay for, the husband argued that the wife was acting otherwise other than agent of necessity.

Issue, whether liquor is a necessity?

Held, it must be considered if the amount of liquor is of an extent that might be reasonably expected by a person in the husband’s state of life.

Conditions necessary for a trader to move against the husband

• It must be proved that the husband refused to supply the wife with the necessaries of life.

• The husband must still have the right to maintain the wife.

• The wife cannot exercise agency of necessity for items which are not necessaries of life.

• The husband must not have prevented the wife from exercising agency of necessity.

• The trader must show that she gave the goods of the agent of the husband and not on the wife’s right. This applies to goods and not money.

• The trader must prove that the husband did not expressly terminate this right.

• Legal expenses of the wife can also be treated as necessaries of life.

1. Through a bilateral maintenance agreement.

Spouses if living in separation may include a clause in their separation agreement of maintenance and this agreement must be enforceable.

In Williams v. Williams, a wife left her husband and the husband promised to make her weekly payment for her maintenance. He failed in this and the wife claimed the arrears. The husband claimed that she had deserted and she could maintain herself.

Lord Denning MR held, a promise to perform an existing duty is sufficient consideration to support a promise, so long as there is nothing in the transaction which is contrary to public interest.

1. Maintenance order from court.

In Uganda statutory law does not create a right of a wife to seek maintenance order where the marriage is still ongoing. However Article 139 of the constitution, Judicature Act Cap 13 section 14, Civil Procedure Act Cap 71 section 98 and Magistrate Courts Act Cap 16 section 10 provides courts with jurisdiction to hear family law cases. They may apply doctrines of common law and equity in ensuring there is maintenance between the husband and the wife.

Johnstone v. Johnstone 1960 E.A. 607

Power to hear matrimonial order

…………………………………….. [1964] 1 WLR 1433

A husband had left his wife and was living with a rich woman and had new additional income to be taken into account when issuing maintenance order.

Held, where a party has failed to make full disclosure of income, property and other resources, court is entitled to draw inferences against him.

In Stringer v Stringer [1952] 1 All ER 373

The husband and wife parted by mutual consent in November, 1946, and from that date the husband had not paid the wife any maintenance nor had she demanded any maintenance until 17 July 1951, when she issued a summons for wilful neglect to maintain.

Held – Proof of a consensual separation of spouses without any agreement by the parties regarding the maintenance of the wife is sufficient to rebut the common law presumption that a husband is liable to maintain his wife.

1. Auxiliary relief.

Section 23 of Divorce Act Cap 249 gives the court power where proceedings have been filed to provide Alimony pendente lite. The court may award alimony not exceeding 1/5 (a fifth) of a husbands income. Section 24 provides that on permanent dissolution, the court may order the husband to secure to the wife such amount of money as it may deem reasonable. If she doesn’t trust the husband the court may receive on her behalf.

In Tanzania, a wife has a duty to maintain if her husbands earning is impaired. On the other hand in England the party more capable of maintaining is responsible.

However it is important to note that the issue of res judicata may apply since the wife cannot apply for revision of the sum awarded as a result of economic change.

8. Fiction of one person.

According to Balfour v. Balfour, a domestic arrangement can’t be taken as a binding contract.

In Uganda v. Chanda, 1977 HCB 11, a married woman could own property separately from her husband and could sue him over her property.

In Moonlight Sengooba v. Administrator General, the woman was allowed to inherit insurance benefits arising out of a policy taken out by her husband. The position of one party is also apparent in rules of evidence as depicted in Uganda v. Kato, where a woman gave evidence against a man she was cohabiting with. In practise a spouse is not a compellable witness in criminal cases.

PROPERTY RIGHTS OF MARRIED PEOPLE

Uganda has no statutory provision governing property acquired by a couple during their married life or prior to marriage. Under common law there was a presumption that all the property in matrimonial home belonged to the husband.

Mawji v. R

There is a natural presumption in absence of evidence to the contrary that property in a matrimonial home is that of a husband.

Under Registration of Titles Act, certificate of title is conclusive evidence of ownership unless challenged by fraud or deceit.

Notwithstanding the above, over the time the courts have developed the doctrine of equity to counter the injustice of rules of legal ownership and protection of women.

Some of these doctrines include;

Resultant trust

This arises where one party has contributed money in the purchase of property in question. The law assumes that the legal owner is the trustee of the other party who is not registered.

In Allen v. Allen, 1961 WLR 1186

The husband had agreed before marriage to purchase a house from her mother in law, after the purchase he put it in his sole name. During the subsistence of marriage his wife applied her income towards household expenses while the husband paid the mortgage instalments. During dissolution of marriage the husband sought to repossess the whole property as the sole owner but the wife counter claimed for a fair share.

The court said that it was not automatic that equal shares arose where the husband and the wife were wage earners. However the court agreed with the wife and said she was entitled to a share due to her house hold contribution.

In a latter case the court took a different view in Pettit v. Pettit [1968] 2 All ER 388

A wife purchased property, the husband undertook internal decoration work and build a wardrobe in it, he also laid a lawn and also constructed an ornamental well and a side wall in the garden all these improved the value of the property.

Issue, whether the husband by reason of his expenditure and labour was entitled to claim a beneficial interest in the proceeds of sale of property.

Held, the husband was not entitled to an interest in his wife’s property merely because he had done during his leisure time jobs which husbands normally did. There was no justification for imputing common intention that husband should acquire beneficial interest in respect of the work that he did.

In Falconer v. Falconer,

The husband and wife were married in 1960. In 1961 when they were living in a flat, they decided to buy a plot of land and build a house on it. The price of the plot was £525 of which the wife’s mother provided £80 and the balance was raised by mortgage buy the wife as the mortgagor and the husband joining as a surety. In the construction of the house, the wife was the mortgagor, the husband’s father guaranteed mortgage repayment for 17 months and the husband paid £105 out of his money. The husband was paying the wife for house keeping until 1967 when the wife committed adultery and on dissolution of marriage.

Held, the plot of land was solely obtained by the wife’s efforts and contribution and hence belonged to her, but the house was paid for by both parties and belonged to them jointly in equal shares.

Where the property in question is matrimonial home, the law imputes an intention to create a trust against each other especially where there is contribution substantially to the purchase.

Common intention cannot be inferred where there is indirect contribution.

In Gissing v. Gissing, the parties purchased a matrimonial home and conveyed it in the sole name of the appellant. There was no express agreement as to how beneficial interest in the matrimonial home should be held. The respondent made no direct contribution towards the initial deposit or legal charges nor to the mortgage instalments. The respondent provided some furniture and some equipment for the house and for improving the lawn; she also paid for her clothes and for her son’s clothes.

It was not suggested that either the respondent’s efforts or earnings made it possible for the appellant to raise the loan or the mortgage. The marriage broke down and the respondent obtained decree absolute.

Issue, whether the respondent had any beneficial interest in former matrimonial home?

Held, on the facts, it was not possible to draw any inference that there was common intention that the respondent should have any beneficial interest in the matrimonial home. The court could not ascribe intentions which the parties never had, nor can the ownership of property be affected by mere fact that harmony has been replaced by discord.

Ulrich v. Ulrich & Felton

Before their marriage, the parties bought a bungalow. The wife contributed £415 and the husband obtained a mortgage for the rest of the money i.e. £2000. The bungalow was conveyed in the husband alone, it was intended to become their matrimonial home. After their marriage they both continued with their work, their joint earnings being used for household expenses. After delivering an issue of the marriage the wife ceased to work to look after the boy. After resuming work the wife committed adultery and the husband left the matrimonial home and on obtaining divorce it was agreed that the matrimonial house had to be sold.

Held, money contributed before marriage was the same as that contributed after, the husband and the wife were entitled to the house in equity. A variation of ante nuptial settlement should be fair and the husband should take half of his share of equity of redemption of the house and the wife’s half should be put in trust in whole or in part for the child of the marriage.

Section 26 of the divorce Act provides that, when a decree of dissolution of marriage or of judicial separation is pronounced on account of adultery by the wife, and the wife is entitled to any property, the court may, notwithstanding the existence of the disability of coverture, order the whole or any part of the property to be settled for the benefit of the husband, or of the children of the marriage, or of both.

In Edita Nakiyingi v. Merekizadeki, the plaintiff and the defendant were married under customary law and the father of the defendant gave a kibanja to the plaintiff on which the plaintiff and the defendant erected a house. The wife contributed corrugated iron sheets plus tendering the kibanja and growing some crops. After the collapse of marriage;

Held, where the matrimonial home is beneficially owned by the husband and the wife jointly in equity or other shares under trust for sale, neither party was entitled as a right to expel the other and thus deprive him or her of his/her share. In the circumstances of the instant case, the kibanja and the house were beneficially owned by the husband and the wife under a trust for sale having arisen out of the substantial contribution by the wife towards the development of the kibanja and building of the house and thus the husband could not exclude the wife from the enjoyment of their joint endeavours.

Bank accounts

In the case of Re Bishop, the court considered the rules governing joint accounts.

In this case it was stated that, where spouses opened a joint account to be drawn by either and any investment made by the money from the account belongs to the person in whose name the investment was purchased and if one spouse made a purchase in their joint names there was no equity to displace joint legal ownership. Any investment purchased with the money from the account in the name of either spouse belonged beneficially to that spouse and on the husband’s death the balance standing to the credit of the joint account accrued beneficially to the wife.

In Jones v Maynard

In May, 1941, a husband and wife each had a banking account, but, as the husband was to go abroad on war service, it was decided that their joint incomes should be paid into the husband’s account on which the wife was given power to draw. From time to time money was withdrawn from the account by both parties for their own purposes, and, in particular, for investments which were made in the name of the husband. In July, 1948, the marriage was dissolved.

Held – On the evidence the intention of the parties was to constitute a pool of their resources in the form of a joint account; it was not consistent with that intention to divide the moneys in the account and the investments made with moneys withdrawn therefrom by reference to the amounts respectively contributed to the account by each of them; and, therefore, the husband must be regarded as trustee for the wife of one-half of the investments and of the balance of the account.

In Harrods v. Tester

A husband opened a banking account in his wife’s name, all payments into the account being made by the husband. The account was used for domestic and other purposes. The wife always asked for her husband’s consent before she drew on the account and she had given the bank the mandate to allow her husband to draw on the account. Judgement creditors sought to garnishee the account.

Held, on the facts there was a resulting trust in favour of the husband, and as the moneys were therefore the property of the husband, the wife’s creditors could not garnishee the account although it was in her name.

In law there is a presumption that wedding gifts belong from the person on whose side they originated. In Samson v. Samson, it was stated that there is no principle of law that wedding presents are joint wedding presents to both spouses. If there is evidence of intention on the part of the donor, that may determine whether the gift belongs to one spouse or both, but if there is no such evidence, the inference may be drawn that gifts from the relatives or friends of a spouse were gifts to that spouse. Property which was given to one spouse may also become the property of both by subsequent conduct.

Chattels and household furniture, Re Cole

A husband acquired a lease of a large mansion which he furnished by articles mainly bought by himself. After sometime he took the wife to the mansion and after showing her around she handled some articles and he told her it’s all yours. They always considered the furniture to be the property of the wife. When the husband became bankrupt the wife claimed most of the furniture as her property.

Held, where the husband and the wife were living together in a common establishment, possession of the furniture therein followed the legal title to the furniture and although the wife may have use and enjoyment of it, and the facts of this case were equivocal and did not establish a charge of possession on delivery of the furniture to the wife as a gift transferring the property to her. Accordingly there had not been effective or perfected gift to her of the furniture and the husband’s trustee in bankruptcy was entitled to the furniture.

Savings from household expenses

Blackwell v. Blackwell

A husband and wife separated in 1941. At that date there was standing to the credit of the wife in the books of a co-operative society a sum of £103 10s which upon the evidence represented moneys saved from a housekeeping allowance made to the wife while the parties were living together. It was contended for the wife that this sum was her own property:—

Held, it was clear that the source of this money was the husband’s weekly allowance and that was sufficient in the absence of any evidence to the contrary that this money was still the property of the husband.

Exceptions

• Where the savings are from the wife’s personal effects

• Gift to a couple living separately

• Money advanced from maintenance

THE LAW RELATING TO DIVORCE

The term divorce is not defined in the divorce act but basically means a formal dissolution of marriage based on appropriate and applicable grounds under the relevant law. The grounds for divorce depend on the nature of marriage and the rules and procedures that regulate such a marriage as well as its dissolution.

Other than death which automatically dissolves marriage in all other cases marriage can be dissolved on recognised grounds either under a divorce Act or under applicable customs as provided for in Article 37 of the constitution which provides that “Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others”, or under Islamic faith and in accordance with principles and procedures applicable there under.

LAW APPLICABLE FOR DIVORCE

Divorce is governed by a number of legislation including constitution Article 31(1) which provides that “Men and women of the age of eighteen years 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.”, Divorce Act Cap 249, Customary marriage registration act Cap 248, the marriage and divorce of the Mohammedans’ act, the judicature act section 14, common law and doctrines of equity and Divorce rules. Julius Rwabinumi v. Hope Bahimbisomwe, Civil Appeal No 30/200 C.A

PRELIMINARY FOR DIVORCE UNDER THE DIVORCE ACT

Jurisdiction is very important in divorce, it is important to identify the court with prerequisite jurisdiction to entertain the petition for the purpose of divorce under the divorce act.

Jurisdiction is provided in Section 3 of the divorce act.

(1) Where all parties to a proceeding under this Act are Africans or where a petition for damages only is lodged in accordance with section 21, jurisdiction may be exercised by a court over which presides a magistrate grade I or a chief magistrate.

(2) In all other cases jurisdiction shall be exercised by the High Court only.

DOMICILE

In order for a court to make a decree for dissolution of marriage, the petitioner must prove to the court that at the time which the petition is presented he/she is domiciled in Uganda. This section was subject of judicial separation in the case of Joy Kigundu v. Aggrey Awori [2001-2005] HCB 122. The court held that section 2 currently section 1 of the divorce act is to the effect that a decree for the dissolution of a marriage cannot be made unless the petitioner is domiciled in Uganda at the time which the petition is presented. In the instant case the petitioner was domiciled in Kenya and the High Court of Uganda in the circumstances had no jurisdiction to entertain her petition for the dissolution of marriage.

There are various ways or forms in which parties may acquire domicile in Uganda.

1. Marriage; this arises in relation to married women whose domicile depend on the domicile of the husband as long as he is alive. In the case of Joy Kigundu (supra), the court observed that during the life time of the husband, the wife cannot acquire domicile of her own separate from that of the husband because domicile of married women depends on the husband and since her husband was domiciled in Kenya her domicile was all in Kenya.

2 . Domicile of choice; it is possible for parties to marriage to acquire domicile of Uganda by choice, in order to satisfy the court that the parties have acquired domicile of choice, they must prove that they have abandoned their domicile of origin and they have settled intention to permanently stay in Uganda.

1. Tatiana Adebiyi v. Adebi Adenji [1990-1991] KALR 36

2. Thornhill v. Thornhill [1965] E.A. 268

3. McKay v. McKay

4. Lyon Zimblai

Domicile maybe proved by the petitioner’s evidence by way of affidavit. Thornhill & McKay. The burden of proof of domicile lies on the petitioner and the standard of proof vary depending on whether the petitioner is relying on her domicile or on the domicile of the other party to the marriage. Lyon’s case

GROUNDS FOR DIVORCE

In a petition for divorce, its incumbent on the petitioner to prove existence of a valid marriage domiciled in Uganda, the grounds for divorce and absence of any bars to the divorce. Whan v. Giggon, he must prove that he is an African for purpose of jurisdiction.

Section 4(1) of Divorce Act allows the husband to apply to the court by petition for dissolution of marriage on the ground that since the solemnisation of their marriage his wife has been guilty of adultery.

In Norman v. Norman, it was held that adultery means adultery given the natural and the ordinary meaning of the word.

In section 4(1) the issue that the husband will only petition only on the ground of adultery, the words were so clear and should not be construed as giving the husband any other ground to petition for divorce.

However, the constitutional court took a different view in Uganda Association of Women Lawyers v. Attorney General (FIDA case) wherein they stated that each of the ground in section 4 is available for both the husband and the wife and this is the law. According to section 4(2) a wife may apply by way of petition.

ADULTERY

Is available for both the husband and the wife by the virtue of constitutional court decision in Uganda Association of Women Lawyers & 5 others v. A.G.

In Dr Kazibwe’s case, the court noted that the position of the law is that both adultery and cruelty are distinctive grounds each on its own rights upon which a decree for dissolution of marriage may be issued. The petitioner (wife) could therefore obtain a decree for divorce after proving to the satisfaction of the court either the ground for adultery or cruelty or both.

Adultery has been defined as consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not being the other spouse. It is sexual intercourse between two persons one of whom or both who may be married but not to each other. Habyarimana [1980] HCB 139

The burden of proof lies on the petitioner to satisfy the court that indeed there was adultery committed by the respondent. In Mary Ruhara v. Christopher Ruhara, it was held that the basic rule as established by case law is that in cases of adultery the burden of proof lies on the petitioner and it is heavier burden than that that lies on a party to an ordinary civil action though it is not high as in criminal cases.

In order to constitute adultery as a ground for divorce, there must be penetration of female organ by the male organ. In Dennis v. Dennis, SINGLETON LJ stated that there is no distinction to be drawn between the words “sexual intercourse” in the definition of “adultery” and “carnal knowledge” in the criminal law. It must be shown that there is some penetration. In matrimonial suits it is not often possible to give direct evidence of sexual intercourse. The practice is stated by the late MR William Rayden in the first edition of his book (at p 63) published in 1910:

“It will not be out of place here to consider the nature of the proofs which will satisfy the court that adultery has been committed: to succeed on such an issue it is not necessary to prove the direct fact, or even a fact of adultery in time and place; for if it were, in very few cases would that proof be attainable; it is rarely indeed that parties are surprised in the direct act of adultery; and such evidence is apt to be disbelieved: in nearly every case the fact is inferred from circumstances, which lead to it, by a fair inference, as a necessary conclusion; and, unless this were so held, no protection whatever could be given to marital rights.”

It is important that the petitioner should adduce evidence to corroborate the alleged adultery. In Ruhara v. Ruhara, it was stated that in proving adultery, the court would normally look for corroboration but direct evidence apart from that of the petitioner is seldom available. Corroboration can also be sought from the previous or subsequent conduct of any party to the proceedings if that conduct influences any fact in issue (s.7 evidence act).

It has also been suggested that in case of adultery, it is not necessary to prove a direct fact of adultery. Adultery can be proved by circumstantial evidence as long as that evidence is cogent to the extent that it raises no other inference other than the fact that the respondent committed adultery.

George Nyakairu v. Rose Nyakairu,

In the case of *Rapsin v. Rapsin, the issue was whether evidence of hotel receipts, register and evidence from the waitress was sufficient to prove adultery.

Held, where there is no direct evidence, the court may rely on circumstantial evidence to make an inference as to the existence of adultery and hotel receipts and register could constitute sufficient corroboration as evidence to substantiate allegation of adultery.

Where an allegation of adultery made against the wife, she may in order to rebut that allegation prove that it was not consensual. The burden lies on her to prove lack of consent. Redpa …………. 1950 All ER 600

Standard of proof is discussed in the case of Habyarimana. The standard of proof is well settled where there is an allegation of adultery, it must be proved to the satisfaction of the court, while the evidence did not reach certainty, it must nevertheless carry a higher degree of probability. In Dr Specioza’s case, it was stated that it is not ordinary but beyond reasonable doubt.

Adultery may be proved by the evidence of the accused. in Specioza’s case, the court noted that whereas adultery can be proved by petitioner by direct or circumstantial evidence, it may be proved by admission by the party against whom it is alleged. Once admitted it need not be proved and the person making the claim is entitled to judgement upon admission.

Preston-Jones v Preston-Jones

The husband was absent from the United Kingdom from 17 August 1945, to 9 February 1946. On 13 August 1946, the wife gave birth to a normal child, and the husband brought a petition for dissolution of marriage on the ground of her adultery, the charge being based on the fact that a period of three hundred and sixty days elapsed between 17 August 1945, and 13 August 1946, from which, it was alleged, it followed that the child must have been conceived in adultery.

Held, though a finding of adultery against a wife might have the effect of bastardising her child that did not mean that a degree of proof of adultery was required such as in a scientific inquiry would justify the conclusion that such and such an event was impossible. No higher proof was demanded than that the fact should be established beyond reasonable doubt, and in the present case all the court could demand was that it should be established beyond all reasonable doubt that a child born three hundred and sixty days after a particular coitus could not be the result of that coitus. On the evidence in the present case it was proved beyond reasonable doubt that the husband was not the father of the child, and he was entitled to a decree.

Where the petitioner relies on adultery as a ground for divorce, it is essential that the respondent be guilty of adultery and the petitioner must be innocent.

Christopher Kivumbi, the court noted the petitioner on his own admission was continuously involved in adultery and could not be aggrieved with the adultery of the wife.

However, a petitioner who si guilty of adultery may apply to court to have such adultery condoned by court and if a proper application is made and granted by a court the petition for divorce may be allowed.

Where the petition is commenced by the husband, section 5 requires that the alleged adulterer be made a co-respondent to the petition.

A husband may by petition claim damages from the person who commits adultery with his wife, however an equal provision is envisaged by the virtue of constitutional court decision in Uganda Association of Women Lawyers case

Kagimu v. Kagimu

CRUELTY

Section 4(2) of the divorce act allows the wife to petition for divorce on the ground of adultery coupled with cruelty. However in view of constitutional court pronouncement in Uganda association for women lawyers, the ground of cruelty alone can be relied on by either party.

In Kazibwe v. Kazibwe, it was held that the petitioner could obtain a decree of divorce after proving to the satisfaction of court either the ground of adultery or cruelty or both. Even a husband can be a victim of cruelty.

Divorce act does not define what amounts to cruelty as a ground to support dissolution of marriage; nevertheless judicial creativity has laid down the meaning of cruelty. In Habyarimana v. Habyarimana, it was stated that no conduct can amount to cruelty in law unless it has the effect of producing actual or apprehended to the petitioner’s physical or mental health.

In order to constitute cruelty, the petitioner must prove that the respondents conduct constitutes danger to life, limbs or health, bodily or mental or a reasonable apprehension of it. Kasasa v. Kasasa 1976 HCB 348

In order to constitute legal cruelty, the conduct of the respondent must be serious. The rule implies that the conduct and nature of cruelty of the respondent must be beyond the reasonable wear and tear of married life. In Mary Ruhara v. Christopher Ruhara, it was held that scalding a person with burning oil would be the most cruel and brutal act and a clear injury to life and limb.

In order to determine whether a conduct amounts to cruelty, the general rule is that the whole matrimonial relationship must be considered and the rule is of special value where cruelty consists not of violent acts but injurious reproaches, complaints accusations and taunts.

In Habyarimana’s case, the court noted before coming to a conclusion as to whether the respondents conduct amounts to legal cruelty, the court must consider the impact of the personality and conduct of one spouse or mind of the other and all incidents and quarrels between the spouses must be weighed from that point of view and regard must be heard on the circumstance of each case and the mental and physical conditions of the parties, their characters and social status. It has further been suggested that in deciding whether a particular conduct amounts to cruelty as a matrimonial case, the whole matrimonial relation, the entire conduct, the personality, the character and the social status of the parties must be taken into account. Kagimu v. Kagimu.

The burden of proof lies on the petitioner to prove that the acts or the conduct of the respondent amounts to legal cruelty. In Gakwavu v. Gasengyre, the court noted that in a petition based on cruelty, courts cannot examine every squabble in relationship. The standard of proof is not beyond reasonable doubt as require in criminal cases, like adultery the standard of proof in cruelty is slightly higher than the preponderance of probability required in ordinary civil cases.

col…….. 1965 EA 132

Collins v. Collins 1964 AC 644

Musinga v. Musinga KALR

Where the spouse deliberately and persistently refuses to have children and leaves her in despair and affects her mental health, it is sufficient ground.

In Knott v. Knott 1995 2 All ER 405

DESERTION

A spouse may petition for divorce on ground of desertion by the other spouse for two years without reasonable excuse. Kazibwe v. Kazibwe.

Desertion has not been defined in the act but case law has provided the various elements that may constitute matrimonial offence of dersertion.

1. Departure/withdrawing from the society of the other spouse.

2. De facto separation of the spouses.

3. Withdrawing from cohabitation on the part of the deserting party.

4. An intention to depart for two years (animus diserendi).

5. The desertion must not be based on reasonable excuse and the person deseted must not have consented to it.

N/B. The desertion must still be running at the commencement of the proceedings.

In cases of de facto separation, there must be evidence of complete cessation of cohabitation otherwise partial neglect of obligation in marriage is not enough.

Perry v Perry 1952 1 All ER 1075

The parties were married in 1939, and in May 1951, the husband presented a petition for divorce alleging that his wife had deserted him from July 1944, to the date of the petition. In December 1949, the wife asked the husband for financial assistance. He thereupon visited her and during the period from that date to

March 1950, he went to see her once a fortnight. On each visit he asked her to resume married life with him, but she refused. On either two or three of these occasions he had sexual intercourse with her, as a result of which she gave birth to a child on 6 December 1950, but at no time did the wife resile from her firm and constant intention never to return to her husband.

Held, though sexual intercourse was beyond doubt a most important incident in the marital relationship, an act, or two or three acts, of intercourse could not be regarded as proof of the resumption of marital relationship where a wife, though participating in such acts, in all other respects repudiated the relationship, and, accordingly, on the facts of the present case the wife had not resumed cohabitation so as to interrupt or terminate the period of desertion.

Desertion does not necessarily mean and constitute withdrawal from a place but constitutes withdrawal from state of things.

Pulford v. Pulford 1923 P

Where the spouses are living together in the same house, the test applicable is whether they are living as two households or one. The petitioner in that case must prove that all matrimonial services and any form of normal life has ceased.

Baker v Baker

On an undefended petition for divorce brought by a husband against his wife on the ground of desertion it was proved that for more than three years before the presentation of the petition the parties had lived in the same house, which belonged to them both, but each occupied a separate bedroom and sitting-room and cooked their own food separately. During that time the husband had not paid any allowance to the wife. They shared the kitchen and the passages and other parts of the house, but whenever possible they avoided meeting.

Held – On these facts the parties had ceased to be one household and had become two separate households, and the wife had deserted the husband.

The petitioner must prove that the deserting party left without consent and presence or absence of consent may be strictly construed e.g. expressly by judicial separation or implied from the conduct of the parties. For it to suffice, consent must be freely given.

Patel v. Patel

The burden of proof is on the petitioner to prove to prove the wife had left his home without consent and without intention of returning and on such proof evidential burden shifts on the respondent that there was reasonable excuse for departure.

Where parties consent to separation and one party withdraws the consent in appropriate circumstances the continued absence of the respondent may amount to desertion.

Where consent to live apart is conditional, and the spouse fails to satisfy that condition the consent ceases to operate and the continued separation may amount to desertion.

Kllin 1953 2 All ER 301

Gatward v Gatward (consequences of discharge of judicial seperation)

In an undefended petition for divorce on the ground of desertion, it appeared that the petitioner was deserted by her husband in July 1931, and that she had obtained a maintenance and separation order from magistrates in the following December. The order contained a provision that the petitioner should no longer be required to cohabit with her husband, but, in June 1938, on an application by the petitioner, the magistrates made an order deleting this clause. At the time of the deletion of the non-cohabitation clause, the petitioner had no intention of returning to her husband, and she applied for its deletion so as to be able to obtain a decree of divorce at the expiration of 3 years. Though served with the proceedings, the husband made no attempt to resume cohabitation. The petitioner contended that the desertion, which ceased to run on the making of the original order, was reconstituted when the non-cohabitation clause was deleted in 1938:—

Held – desertion was not automatically reconstituted by the deletion of the non-cohabitation clause, and it was necessary for the wife to prove further facts from which the court could infer that desertion had been reconstituted. In the present case, the husband’s conduct since the deletion of the clause was sufficient proof that desertion had been reconstituted in 1938.

Predie 1944 EACA 42 (consequences of breaking a continuous period of desertion)

The mere fact that parties reside together does not exonerate the party from being in desertion of the other especially where there is no sexual intercourse.

In Hutchingson v. Hutchingson, the husband was living apart from the wife but agreed to resume cohabitation on condition that there would be no sexual intercourse and the wife was not prepared.

Issue, whether that amounted to desertion?

Held, the husband insistence on refusal of sexual intercourse as a condition for presumption of cohabitation constituted to desertion.

However, where spouses refusal to have sexual intercourse is founded on medical/biological reasons, that might not amount to separation. On the same note it is important to note that structural incapacity to have sexual intercourse does not amount to desertion.

Beevor v Beevor

The parties were married on 4 April 1923. A son was born to them in Feb 1925, and from that time onwards the respondent wife consistently refused to have sexual intercourse with the petitioner husband in spite of his warning that he would leave her if she persisted in the refusal. The petitioner had treated her with affection and tolerance but, as she still continued in her refusal, he left the matrimonial home in May, 1940. From the evidence it was found that the respondent had developed an invincible repugnance to the sexual act. The petitioner filed a petition for divorce on the ground of desertion, contending that the respondent’s course of conduct drove him away and that, therefore, she was the deserter. The respondent contended that the departure of the petitioner constituted desertion and asked for the dissolution of the marriage:—

Held – The evidence led to the same conclusion as though the respondent wife had been rendered structurally incapable of intercourse by some accident or disease and that afforded no ground for the petitioner to leave her. The petitioner, therefore, by his departure had deserted the respondent, who was entitled to a decree.

Constructive desertion; this is a creature of case law. it arises where one of the spouses conducts him/herself as to make it impossible for the other spouse to continue living with him or her in the same matrimonial home. Desertion is not necessarily withdrawing from matrimonial home but state of things, the test is whether the spouses are living together as a husband and wife.

“In constructive desertion the spouse charged must be shown to have been guilty of conduct equivalent to ‘driving the other spouse away’: per

BUCKNILL, J., in Boyd v Boyd ([1938] 4 All E.R. 181 at p 183); from the matrimonial home and to have done so with the intention of bringing the matrimonial consortium to an end. In each case the intention may, of course, be inferred if the circumstances are such as to justify the inference.”

Bartholomew v Bartholomew

In December, 1945, the husband returned from war service and complained of the dirty condition in which the wife was keeping herself, the matrimonial home, and the children, and in March, 1946, he left, telling the wife that, if she failed to effect an improvement, he would not return. He complained that she failed to improve the conditions, and he refused to return to her. On a petition by him for divorce on the ground of constructive desertion,

Held – The fact that a wife was dirty in her person and her home was not of necessity evidence which showed that she wished to bring the matrimonial consortium to an end; she might be dirty because she was lazy or lacked energy; the conduct of the wife in the present case was not of such a grave and convincing character as to justify an inference of an intention by her to drive the husband away from the matrimonial home; and, therefore, she was not guilty of constructive desertion.

DENNING LJ. I agree. On the findings of the commissioner the wife was a lazy and dirty woman who did not keep the house or the children in a clean and proper state, so much so that on that account the husband left the house. That is not sufficient to make the wife guilty of constructive desertion. The essential element of intention is wanting. The wife had no wish that the husband should leave. There is no evidence that the wife intended to bring the matrimonial consortium to an end, and there is no ground for inferring any such intention. Without such intention constructive desertion cannot be found.

The law about constructive desertion was laid down by Bucknill J in 1938 in Boyd v Boyd, in terms which were quoted with approval by Lord Greene

MR in Buchler v Buchler, in the passage my Lord has read, and the judgment of Bucknill J was explicitly approved by this court in Hosegood v Hosegood.

The judgments in Hosegood v Hosegood were considered judgments, and I know that Bucknill LJ agreed with what I said about the nature of constructive desertion. Winnan v Winnan, in which the wife kept a large number of cats in the matrimonial home, must have depended on special evidence available to show that she intended to bring the matrimonial consortium to an end in that she preferred the cats to her husband. In the present case I see no evidence, and no ground for inferring, that the wife intended to bring the matrimonial consortium to an end. The real thing for the husband to have done would have been to buckle to himself and seen that the house and the children were kept in proper order. Instead of doing that, he left the house and his children, and was himself the deserter. Accordingly, I agree that the appeal should be allowed.

In a petition for divorce, the petitioner must prove not only prove marriage, domicile and ground for divorce but in addition must prove to the satisfaction of the court that he/she has not been accessory to or has not connived or condoned or the petitioner has not been prosecuted in collusion. That implies that where there is evidence of connivance, condonation or collusion even if the petitioner has satisfied the grounds the court may not grant the petition.

N/B. condonation, connivance and collusion are absolute bars to divorce. Section 8 of the Divorce Act Cap 249 provides that a petition shall be granted;

(1) If the court is satisfied that the petitioner’s case has been proved, and does not find that the petitioner has been accessory to or has connived at the going through of the form of marriage or the adultery, or has connived at or condoned it, or that the petition is presented or prosecuted in collusion, the court shall pronounce a decree nisi for the dissolution of the marriage.

(2) Notwithstanding subsection (1), the court shall not be bound to pronounce the decree if it finds that the petitioner has during the marriage been guilty of adultery, or been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty to the respondent, or of having deserted or wilfully separated himself or herself from the respondent before the adultery complained of, and without reasonable excuse, or of such wilful neglect of or misconduct towards the respondent as has conduced the adultery.

COLLUSION

It connotes an improper agreement or bargain by the spouses to the effect that one of them should bring proceedings against the other for purpose of obtaining divorce. In Brine v. Brine, 1924 SA SR 432 Sir Francis defined collusion to mean an agreement express or implied between the petitioner and the respondent for the purpose of obtaining a divorce contrary to the justice of the case.

The reasonable inference drawn from the foregoing point is that the object of the agreement is to deceive or impose upon the court by way of evidence that false witness shall be supplied to the court or material fact withheld from it.

In Barlow v. Barlow, 1937 SA SR 246 it was stated that the test applicable to determine whether there is collusion, is for the court to find out whether there has been such an agreement in fact or not and it is a question dependent on the circumstances of each case. The mere fact that the respondent has not defended the petition is not enough to constitute collusion. In Patel v. Patel, the respondent sent a lawyer and said he had no ground for opposing the petition.

Where the petition is initiated, procured and conducted especially without being defended on the basis of an agreement between the parties and as a result relevant material is withheld from the court with the intention of facilitating a ground for divorce, such arrangement constitutes collusion.

Stavridis v. Stavridis, collusion may be inferred from the circumstances under which a petition is instituted. In Gabric v. Gabric, the court noted that there was collusion in the institution of a suit for divorce when the commencement of the suit was brought about by an agreement by the co-respondent to deposit a sum of money for the petitioner’s costs of suit and of obtaining evidence, and by an agreement by the respondent to supply an address where necessary evidence would be obtained, and the deposit and information were in turn brought about by an undertaking on the part of the petitioner not to seek custody or damages.

It is ordinarily enough to constitute collusion where the agreement between the parties prevents the respondent from asserting material facts which amounts to withholding substantial evidence from court. In Hubbard v. Hubbard, the court noted that there had been a bargain between husband and wife that the husband would not present his side of the facts so that an intended result was that the court would be deprived of relevant evidence which might affect its conclusion. The court further noted that this constituted to collusion with intent to cause a perversion of justice.

Where defence is abandoned for a consideration there is collusion as stated in Grose v. Grose, collusion would arise where parties agree not to urge a substantial and bonafide defence which would by virtue of that agreement, deprive the court of an opportunity of fulfilling its statutory functions of determining the issues involved and which would lead to a decree or order being improperly obtained.

In Shaw v. Shaw, it was observed that where there is an agreement for consideration to withhold evidence, which if believed, would establish that the court had no jurisdiction to hear the suit, then that agreement would seem to be collusive.

It is also important to distinguish between the two types of collusive bargain. A collusive bargain which in the ordinary meaning of the word is corrupt, remains an offence legally and morally e.g. procurement of a decree upon a false case or improper pressure by financial bribes or threats upon the spouse to bring a suit or abandon a defence.

The other collusive bargain depicted in Nash v. Nash, is a collusive bargain which represents an honest negotiation between the parties which is not intended to deceive the court either by putting forward false evidence or suppressing or withdrawing a good defence.

Colbec v. Colbec [1961] EA 431

Where the petitioner is proved to have colluded in presentation of the petition, section 7 empowers the court to dismiss the petition. “The petition shall be dismissed if the court is satisfied that the petition is presented or prosecuted in collusion with either the respondent or co-respondent.”

CONNIVANCE

Connivance connotes behaviour of a person designed to cause his/her matrimonial spouse to commit a matrimonial offence such as adultery, this implies that the petitioner has consented to the matrimonial offence.

In Godfrey v. Godfrey it was stated that where a man wilfully consents to his wife’s adultery, he is deemed to have connived and is guilty of wicked and disgraceful conduct that he should not be allowed to complain of that or any subsequent adultery.

Poulden v. Poulden [1838] All ER 508

In order for a petitioner to succeed, there must be evidence that the adultery originary being the subject of connivance is not the proximate cause of the subsequent adultery which is now the subject of consequent petition.

Court in Godfrey categorised connivance into two; the first and the most prominent being in regard to a position of a conniving husband. The court noted that a man who consents to his wife’s adultery is guilty of that and subsequent adultery. The court however noted that it may be possible for such a husband to obtain relief on basis of subsequent adultery where he satisfies the court that the connivance was spent.

The maxim once connivance always connivance is no longer a valid representation of the law in so far as it doesn’t accommodate exceptions otherwise, as long as the connivance is the proximate cause of subsequent adultery it is not spent.

1. Gipps v. Gipps 1864 HL

3. Gost v. Gost [1952] 2 All ER

5. Douglas [1959] 2 All ER 748

7. Woodbury [194-] 2 All ER 654

The court must consider the conduct of the petitioner as a whole or for a reasonable time to ascertain whether there was wilful consent to future adultery.

It is also important to prove that the party condoning was aware of matrimonial offence being committed.

Butch v. Butch

The wife discovered that the husband had relations with other women, in order to keep the marriage intact, she told the husband an isolated case of adultery between her and a Canadian, the husband left the matrimonial home and petitioned on the ground of the wife’s adultery.

Issue, whether the husband had condoned or connived on the wife’s confession?

Held, in absence of evidence that the husband was aware of the wife’s adultery, it would not be said that the husband had connived.

CONDONATION

This means forgiving a matrimonial offence or turning a blind eye on it where a spouse knows the other has committed a matrimonial offence and forgives expressly or by necessary implication and conducts himself in such a way that he believes that he is forgiven that amounts to condonation.

According to section 9 of the Divorce Act, adultery shall not be deemed to have been condoned unless conjugal cohabitation has been condoned or subsequently continued.

Ross

Christina v. Omari

DISCRETIONARY BARS TO DIVORCE

The court has powers to decide where the petitioner is at fault e.g. of adultery, or where the petitioner has taken too long or has reasonably delayed with presentation of petition or has been guilty of cruelty or desertion, the court shall not be bound to pronounce a decree. Section 8(2) of the Divorce Act “the court shall not be bound to pronounce the decree if it finds that the petitioner has during the marriage been guilty of adultery, or been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty to the respondent, or of having deserted or wilfully separated himself or herself from the respondent before the adultery complained of, and without reasonable excuse, or of such wilful neglect of or misconduct towards the respondent as has conduced the adultery.”

1. Kerr v. Kerr

2. Kivumbi v. Kivumbi, the petitioner should apply to the court to condone adultery.

3. Prince v. Prince 20 KLR 121 Unreasonable delay in presenting the petition

4. Medcalfe

PROCEDURE FOR DIVORCE

Section 30 is the law that regulates procedure of divorce regulated by the civil procedure Act and the rules made there under. S 31 provides that proceedings are commenced by way of petition which must state in the facts on which the petition is based and shall be verified by an affidavit. The affidavit must state there is no collusion or connivance between the petitioner and the respondent.

Where there are issues, the petitioner should indicate the names of the children and their ages. The petition should show existence of marriage and where it was contracted from.

The petition should state the ground relied on and the facts conferring jurisdiction on the court.

The petition may also pray for maintenance, custody and distribution of property and indicate those properties. The same principles apply to company properties since it is a distinct entity.

Rwabinumi

The petition must be served on the party affected who is expected to file a reply.

Consequences of divorce

In a petition for dissolution of marriage the aggrieved party may claim for damages from any person on having committed adultery with his wife. Section 21-22, Uganda Association of women Lawyers.

1. Pritchard

2. He Gypt 1954 KLR 24

Procedure for damage recovery, section 21(3) the court may direct that the damages be levied from movable and immovable property of the person ordered to pay for the benefit of the children and maintenance of the wife.

Custody

In a suit for dissolution of marriage, court may, or after a decree absolute has been pronounced make such orders as to custody and maintenance of young children.

In Teopista Kayongo v. Richards, it was stated that custody of children of tender years should stay with the mother unless she is not fit and proper.

In determining who should have custody of children, the welfare of minors is the paramount consideration. The court has to consider; who is the fit and proper person to take care of the interests of the minors.

P. Nakagwa

Kalisa

The term welfare though not defined ordinarily means in relation to the children all circumstances affecting the well being and upbringing of a child have to be taken into account and the court has to do what a wise parent acting for the interest of a child ought to do.

Nakagwa

The power to grant custody to any parent is discretionary and the court will take into account a number of relevant factors including the financial position, age and sex of the minor, education of the minor, health and proper upbringing.

Nyakairu

Where custody is granted to one of the parties, the other party is entitled to the right of access to the children in the same way children are entitled to visit you as long as you don’t interfere unduly with their well being and only where necessary will children be free to visit.

Maintenance

Where court has granted custody to any of the spouses, it may order the other spouse to provide for maintenance of the children. Nyakairu

The court can vary the order of maintenance on the change of economy. Section 29 “In suits for dissolution of marriage, or for nullity of marriage or for judicial separation, the court may at any stage of the proceedings, or after a decree absolute has been pronounced, make such order as it thinks fit, and may from time to time vary or discharge the orders, with respect to the custody, maintenance and education of the minor children of the marriage, or for placing them under the protection of the court.”

Alimony

According to section 23 of the divorce act, a wife whether or not she has obtained a protective order may apply to court pending suit and court may make such order as it may deem it fit and just except that the order should not exceed 1/5 of the average net income for three years next preceding the date of the order, i.e. alimony pendente lite.

Section 24 provides for permanent alimony where a decree absolute has been made, the court has to take into account the ability of the husband and the conduct of the parties. Court may direct either the alimony to be paid in lump sum, annually weekly or monthly during the life of the wife and depending on the ability.

The order of alimony may be discharged where there is a just cause i.e. inability of the husband to make continued payment, improved position of the wife. Once the court makes the order absolute and there is no appeal or the appeal has been dismissed or the time limit for the appeal has expired the parties may marry again as if the prior marriage had been dissolved by death. Section 40 provides that “no clergyman in Holy Orders of the Church of Uganda shall be compelled to solemnise the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnising, or refusing to solemnise, such marriage.”

Process of final dissolution of marriage

Once the court allows the petition, it makes a decree nisi and the decree cannot be made absolute until the expiration of 6 months from declaration of that decree or longer periods as the Chief Justice may prescribe by rules.

In Neogy v. Neogy [1967] EA 664, it was held that there is no power in Uganda for court to bridge the 6 months period provided in decree nisi and decree absolute.

Morris v. Morris

The 6 month period is for cooling after which either party can show why the decree should not be made absolute. Section 37

Where the petitioner fails to move the court within a reasonable time for the decree to be made absolute the court may dismiss the petition. Section 37(5)

Distribution of property

Section 26 provides for the settlement of the wife’s property for the benefit of the husband and the children where the divorce is on the account of her adultery. Section 27 gives the court the power to vary settlements

Imelda Mwewulize

The general principle of the law is that, where a spouse is able to prove financial or monetary contribution to the property acquired by the other spouse or both of them jointly, the property is distributed in respective contribution.

1. Edita Nakiyingi

2. National Provincial Bank v. Ainsworth

However that provision has been subject of judicial consideration in the case of Julius Rwabinumi v. Hope Bahimbisomwe, the court of appeal stated that Article 31(1) forms the constitutional basis of the rights of partners in any legal marriage in Uganda. It further stated that property acquired in the anticipation of marriage and during marriage constitute matrimonial property and must be shared equally regardless of the contribution.