Nuggets on Dissolution of marriage in Uganda
According to the Constitution of the Republic of Uganda (1995), “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.”
Divorces are regulated by the Divorce Act. Cap. 249, any married Ugandan resident can apply for a divorce. If both parties to the marriage are African, divorce may be filed to Chief Magistrate’s court. If either of the parties is non-African, the petition has to be filed in the High Court.
1. Jurisdiction
(1)Where all parties to a divorce petition are Africans, jurisdiction may be exercised by a court over which presides a magistrate grade I or a chief magistrate.
(2) Where one of the parties is not Ugandan then jurisdiction shall be exercised by the High Court only.
2. Grounds for divorce
(1)A husband may apply by petition to the court for the dissolution of his marriage on the ground that since the solemnization of the marriage his wife has been guilty of adultery.
(2)A wife may apply by petition to the court for the dissolution of her marriage on the ground that since the solemnization of the marriage—
(a)her husband has changed his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or
(b)has been guilty of—(i)incestuous adultery;(ii)bigamy with adultery;(iii)marriage with another woman with adultery;(iv)rape, sodomy or bestiality;(v)adultery coupled with cruelty; or(vi)adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Where the husband is the petitioner, he shall make the alleged adulterer a correspondent to the petition unless he is excused by the court from doing so on one of the following grounds—
(a) that the respondent is leading the life of a prostitute, and that he knows of no person with whom the adultery has been committed;
(b)that he does not know the name of the alleged adulterer although he has made due efforts to discover it; or
(c)that the alleged adulterer is dead.
However in the case of Uganda Association of Women Lawyers and ors v Attorney General, Constitutional petition, Constitutional Petition No 2 of 2003, [2004] UGCC 1, ILDC 1137 (UG 2004), 10th March 2004, Uganda; Constitutional Court, the five judges on the Coram concurred that the sections in the Divorce ACT that stipulated different grounds of divorce for men and women were unconstitutional and effectively nullified them.
This means that the same grounds that a husband can rely on to divorce would be available to a wife.
Although the judgment has taken effect as a precedent, the Divorce Act is yet to be amended.
According to the Constitution of the Republic of Uganda (1995), “Article 31 Rights of the family (1) 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”.
3. Prohibition of collusion
The court shall satisfy itself, so far as it reasonably can, as to the facts alleged, and also whether or not the petitioner has been in any manner accessory to or conniving at the going through of the form of marriage or the adultery complained of, or has condoned it, and shall also inquire into any countercharge which may be made against the petitioner.
4. The petition can be dismissed under the following circumstances
The petition shall be dismissed if the court is satisfied that the petitioner’s case has not been proved, or is not satisfied that the alleged adultery has been committed, or finds that during the marriage the petitioner has been accessory to or conniving at the going through of the form of marriage or the adultery or has condoned it, or finds that the petition is presented or prosecuted in collusion with either the respondent or correspondent.
5. The petition shall be granted under the following circumstances
(1)If the court is satisfied that the petitioner’s case has been proved,
If the court 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) 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 and has condoned the adultery.
6. Condonation of adultery
Condonation involves one spouse absolving or accepting the other spouse’s misconduct which would constitute grounds for divorce. In essence, it means that a party continues or resumes marital cohabitation, despite the other spouse’s misconduct
Adultery shall not be deemed to have been condoned unless conjugal cohabitation has been continued or subsequently resumed after the adultery.
7. Making the decrees nisi decrees absolute
If the court is satisfied that the petitioner’s case has been proved, a decree Nisi will be issued.
No decree nisi of dissolution or nullity of marriage shall be made absolute till after the expiration of six months from the date of the decree, or such longer period as the Chief Justice may by rules prescribe.
(2)During the period of six months after the issuance of the decree nisi any person may show cause why the decree should not be made absolute by reason of the same having been obtained by collusion, or by reason of material facts not having been brought before the court.
(3) Upon the expiration of six months after the issuance of the decree nisi, the petitioner will make an application to show cause to make the decree absolute, or reverse the decree nisi, or require further inquiry, or otherwise deal with the case as justice may demand.
8. What happens if the respondent in the divorce petition is not guilty of any act that amounts to the grounds for divorce?
The petition shall be dismissed if the court is satisfied that the petitioner’s case has not been proved or if the alleged grounds for the divorce are false.
The concept of Irreconcilable Differences?
“Irreconcilable differences” technically means that an individual and their spouse cannot get along with one another enough to keep the marriage alive, and this lack of getting along can cause a whole array of other issues in the marriage. It doesn’t necessarily matter what exactly caused a rift within the marriage because irreconcilable differences simply mean that the marriage isn’t fixable due and the differences between each spouse are too great. Carrie S. Schultz, Esq.
Irreconcilable difference or irretrievable break down of marriage in itself is not a ground for divorce in Uganda as of 23rd January 2020. Previously, courts would base on it as a ground to dissolve a marriage. The situation changed with the decision in court of Appeal Civil Appeal No. 160 of 2018, Rebecca Nagidde versus Charles Steven Mwasa.
In Nagidde v Mwasa (Civil Appeal No, 168 of 2019), the trial judge granted a divorce without holding a hearing or receiving evidence from the parties, stating that the marriage had irretrievably broken down on account of irreconcilable differences. However, the Court of Appeal emphatically stated that as attractive as it was, irreconcilable differences was not a ground for divorce in Uganda.
However the particulars of irreconcilable differences may be used as evidence to substantiate the grounds for divorce.
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