FAMILY LAW

TEACHING MATERIAL

APIO ESTHER

VICTORIA UNIVERSITY

What is family law?

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To define family law encompasses similar problems like those encountered in
defining what a family is. This is so because there is no accepted definition.
Family law according to Murphy (2005) and B. Stark (2005) (the growing
significance of international family law) is seen as the law governing the
relationships between children and parents, and between adults in close
emotional relationships.
This means that Family law cannot be contained in one definition. This is so
because many areas of law have an impact on family life: from taxation to
immigration law, insurance laws, social security laws etc.

Family law is perhaps the most fascinating law because it is the only area
which all of its students have been personally involved from the moment of
birth. It is multi-faceted and includes aspects of legal intervention into the
private and domestic lives of those related by blood or affinity, or those who
have emotional I each other.
Defining what a family is, rather difficult. Most definitions center on an ‘ideal
family’ definition which is a mother, father and probably two children yet
most people do not experience this particular form of family.

The 1999 African Union’s Charter on the Rights and Welfare of the
Child Article 18(1) attempts to give the nature of a family thus; "The family
shall be the natural unit and basis of society. It shall enjoy the protection and
support of the State for its establishment and development."

The Universal Declaration of Human Rights in similar terms states under

Article 16(3) that, "The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State."

The Preamble of the United Nations Convention on the Rights of the Child
(1989), states that "... the family (is) the fundamental group of society and
the natural environment for the growth and well-being of all its members and

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particularly children....”

In Hendriks v Netherlands, UN Human Rights Committee, No.

201/1985, the committee states that, "The idea of the family must
necessarily embrace the relations between parents and child. Although
divorce legally ends a marriage, it cannot dissolve the bond uniting father -
or mother - and child- this bond does not depend on the continuation of the
parents' marriage."

From the above, one idea stands out, that is the institutional nature of a
family. It is possible to distinguish families (a group of people related by
blood, marriage or adoption); a nuclear family (parents and their dependent
children); extended families (the nuclear family plus the wider kin, e.g.
grandparents); kinships (the larger family groups related by blood or
marriage); and households (a group of people sharing accommodation).

The next question is how might the law define a family?

There is no universally accepted definition or a family, it therefore varies
according to the society and jurisdiction one is referring to, hence the idea of
a family is a universal concept and it is the critical link between an individual
and his society and it can therefore be referred to as the, basic unit of
society.

A family is the center of focus in family law. In many jurisdictions, the term
‘family’: term of art; has no independent generalized legal meaning; it
changes-over time and can only be understood within the particular socio-
legal context in which it is used.

Family law is essentially ruled by statute, but common law precedent plays
an important role as well: It covers the laws related to arid regarding
families. This the establishment of family, domestic relations, the rules for

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creating the union (marriage) its termination/dissolution and ensuing issues
related to this such as guardianship, child support, property division
maintenance and the like.

Historically the term family encompasses a wide group of people who shared
the same blood in most cases those who share the same household-referred
to the man's consisting of himself, his wife; in the absence of wife and
children, it may brothers and sisters or his next of kin, or the genealogical
stock to whom from he may have sprung (nuclear and extended).

From Bromley's family law 11th Edition defines a family as the basic social
unit, constituted by at least two- people whose relationship may fall into one
of the following category; of husband, wife, two people living together in a
manner similar of spouses or persons living together who may be related by
blood/ marriage.

Ronald Fletcher in his book “The family and marriage m Britain” states that
the family is in fact a community in itself, a small and relatively permanent
group of people related to each other in the most intimate way bound
together by the most personal aspects of life, who experience amongst
themselves the whole range of human emotions, who have to strive
continuously to resolve those claims and counter claims which stem from
'mutual but often conflicting needs who experience continual responsibilities
and obligations towards each other, who experience a sense of belonging in
the most intimate felt sense of that word. The members of the family share
the same source of pleasure, joys, profound conflict, losses and grief hence
the family is the group within which the-most fundamental appreciation of
human qualities for values takes place for better/ worse. The qualities of
truth and honesty, of falsehood, deceit, of kindness and sympathy, of
indifference and cruelty of cooperation and full bearance of egotism and
antagonism of tolerance, justice and impartiality "...all those values, all those

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discriminations and assessments of values which are of the most
fundamental importance for the formation of adult character as far as
experienced by children in context of the family.

By the 20th century, in many western countries, the legal definitions of family
grew narrower. A number of decisions in the UK illustrate the changing
definitions of family over time especially in the Rent Act 1977 legislations
which provides a plentiful supply of illustrations of this trend.

In Uganda, all laws relating to domestic relations do not define what a family
is. Under Objective XIX of the National Objectives and Directive Principles of
State Policy in the 1995 Constitution of Uganda (as amended), a family is
described as the natural and basic unit of society and is entitled to protection
by society and the State.

This is a similar description as provided by the international instruments

already quoted.

The Constitution further provides under Article 31 for the rights of a family
but still does not define it. The law as applied by Courts of law often rely on
the person in the street’s definition of a term where there is no legally
recognised definition provided by the law. Here the Court would ask itself,
how would a person in the street define a family? The difficulty with this is
that although there may be some cases where everyone would agree that a
particular group of people is a family, there are many other cases where,
when asked, people would answer ‘I don’t know’, or there would be
conflicting answers,, reflecting different values, religious beliefs or cultural
perspectives. So, asking a person in the street does not help to clarify the
definition of family in ambiguous cases.

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Courts had gone ahead to restrict the definition of family to only occur where
parties are in some sort of marriage. In Gammans v Ekins (1950) 2 All ER
140, the court of appeal rejected the claim of a male cohabitant to remain in
the family home on the death of his partner. Asquith LJ took the view that
either the relationship was platonic and the couple were not members of
each other's family, or it was not. If the relationship was platonic, Asquith LJ
relieved that to recognize the cohabitants as members of same family would
also require the court to accord the same to two old cronies of the same sex
innocently snaring a flat. If the relationship were not platonic, Asquith
thought.

"..........anomalous that a person could acquire a rent Act protected persons by

living or having lived in' sin, even if the relationship had not been a mere casual
encounter but protracted in time and conclusive in character. That to accept a
same sex couple, masquerading as husband and wife, as members of the same
family was an abuse of the same language."
Lord Ever shed MR in agreement stated that may be no bad thing that by this
decision it is shown that, in the Christian Society in which we live, one, at any rate
of the privileges which may be derived from marriage is not equally enjoyed by
those who are living together as man and wife but who are not married'."

In Harrogate Borough Council v Simpson (1986) 2 FLR91, 9 3-5(CA)

The case arose in the context of succession to tenancies by family
members living with the tenant on his or her death. Under the legislation
applicable in this case, the claimant could succeed only by showing that
she was a member of the tenant's family as described by the Housing Act
1980.

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"A person is a member of another's family within the meaning of this
Chapter if he is his spouse, parent grandparent, child, grandchild, brother,
sister, uncle, aunt, nephew, niece or they live together as husband and
wife."

MS Simpson, the defendant, had lived with MRS Rodrigo, the deceased for a
year and a half in a lesbian relationship; she argued unsuccessfully that, they
could be ' regarded as having 'lived together' as husband and wife.

Watkins LJ held: If parliament had wished homosexual relationships to be

brought into the realm of the lawfully recognized state of living together of
man and wife for purpose of the relevant legislation, it would plainly have
so stated in that legislation and it had not done so. That it would be
surprising in the extreme to learn that f opinion is such today that it would
recognize a homosexual union as being akin to state of living as husband
and wife. The ordinary woman and man would in opinion not think even
remotely of there being a true resemblance between different status of
affairs.

In contrast with the above cited the concept of family has experienced a
change in the definition since the beginning of the 21 st century.

However as expressed in the leading case of Fitzpatrick v Sterling Housing

Association Ltd [ 2000] 1 FCR 21, the former approach no longer
represents good law. Fitzpatrick (2000) concerned a Mr Thompson and a Mr
Fitzpatrick, who had lived together in a flat for 18 years until Mr.Thompson
died. Under the Rent Act 1977 Mr Fitzpatrick could succeed to the tenancy of
the flat, which had been in Mr Thompson’s name alone, if he was a member
of Mr Thompson’s family. So, the core issue was whether a gay or lesbian
couple could be a family. By a three to two majority the-House of Lords held

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that Mr Thompson and Mr Fitzpatrick were a family. The majority- accepted
that the meaning of family is not restricted to people linked by marriage or
blood. Lord Slynn suggested that the hallmarks of family life were ‘that there
should be a degree of mutual interdependence, of the sharing of lives, of
caring and love, or commitment and support’. He later added that the
relationship must not be ‘a transient superficial relationship’. Applying these
criteria to the couple in- question, they were certainly family members. Mr
Fitzpatrick had cared for Mr Thompson during the last six years of his illness.
Lord Clyde, unlike the others in the majority, thought that it would be difficult
for a couple to show that they were a family unless there was an active
sexual relationship or the potential for one. He felt that the sexual element
was important if a distinction was to be drawn between families and
acquaintances. The dissenting judges argued that the paradigm of the family
was a legal relationship (e.g. marriage or adoption) or by blood (e.g. parent-
child). As the couple did not fall into these definitions, nor did they mirror
them, they could not be regarded as a family, although the minority added
that they believed Parliament should consider reforming the law so that a
survivor of a gay or lesbian relationship could take on a tenancy.

Conclusively, from the foregoing it is right to note that though there is no

agreed definition of what, a family is', there are no workable definitions as
expressed above. Key to note is that die law does not restrict the definition
of family life to those who are married or those who are related by blood. It is
willing to accept that other less formal relations can be family if they can
demonstrate a sharing of lives and degree of intimacy and stability.
However, it would be wrong to say that the law takes a pure function based
approach because if a couple are married they will be regarded as a family,
even though their relationship is not a' loving, committed, or stable one.

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 FAMILY IN UGANDA
In Uganda, the Constitution does not specifically define family or family law.
How it recognizes the family as the basic unit of the society, and should be
protected, family is seen as the social institution based on marriage between
husband and wife.

A family is protected under the constitution, Article 31 protects the family

and right of any person above 18 years to marry. The Article also
acknowledges equal rights of the parties during the marriage and at its
dissolution. The Article further recognizes parental rights, duties over their
children and the fact that man should be entered into by free consent of the
partners who should enjoy equal rights over inheritance.
Principle 19 requires the state to protect the family which is recognized as
the basic unit of society. Article 34 provides for the rights of a child and the
duty of parents to care for their children, provide education, medical
treatment and protect them from social and economic exploitation.

TYPES OF FAMILIES
 The nuclear family which-consists of parents and their children,
forming an independent residential unit, usually without relatives.

 The extended family which consists of parents, their children and other
blood relations Living in the same household and together sharing
work, Responsibilities and the fruits of production.
In Uganda the extended family is still the most traditional pattern of a family
organization.

FUNCTIONS OF A FAMILY
There are certain important functions that are fulfilled within a family and
these may include;
 Resolution of disputes among family

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 members
 The family enables people to acquire
status
 Protection of weaker members of a family against physical emotional
problems.
 Procreation, companionship, psychological support in times of
individual stress,
 Unit of property distribution especially in cases of divorce, separation,
intestate death.

COHABITATION
This is an arrangement where a man and a woman decide to live together as
husband and wife but decide not to go through any form of marriage. These
arrangements are not recognized as legal arrangements in Uganda
irrespective of the length of time the parties thereto have stayed together or
the number of children they, may have or the property that may have been
acquired during the cohabitation.

Among religious sections in our society Cohabitation was and is still viewed
and seen as an immoral act and liable to be struck down to being contrary to
public policy. See English Case Dewell v Fernells (1959) 2 ALLER 379.

The rejection of cohabitation is mainly to uphold society, values. It is

argued that giving the unmarred rights posed by legally married
weakens the institution of marriage this undermining the status of
family.

The reality however is that people practice cohabitation in many jurisdictions

including Uganda. During the cohabitation and after, several disputes over
custody and property usually arise. Against this background; across section
of Ugandan argue that cohabitation should be recognized as a legal

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arrangement equivalent to marriage especially if the cohabitees have been
together for a period of 10 years and above.

As the debate and controversy still persists on the subject of legalizing

cohabitation, the law reform has included cohabitation in the current
Ugandan Bill. The Marriage and Divorce Bill 2012 defines cohabitation as a
man and woman living together as husband and wife. It is not a form of
marriage but the bill recognizes cohabiting partners' joint rights to property.
Clause 117 of The Bill provides that two persons in contemplation, of
marriage or cohabitation or cohabitating may make an oral or written
agreement in respect of ownership and distribution of separate property of
each cohabitee. The agreement may include the settlement of any
differences that may arise regarding ownership of the property.

Many women activists consider the clauses above as progressive towards the
protection of women property rights. Women in cohabiting relationships lack
protection of the law when the cohabiting relationship breaks or comes to an
end.
The argument is that, it-Would be unfair for a women for example who has
stayed for 10-15 years without marriage to be forced to walk out without any
property.

THE NATURE OF MARRIAGE

Marriage has two distinct meanings: the ceremony by which a man and
woman become husband and wife, or the act of marrying and the
relationship existing between a husband and his wife, or the state of being
married. This distinction corresponds with its dual aspect of contract and
status.

Marriage establishes fundamental and most domestic relations. Every well-

organized society is essentially interested in the existence and harmony and

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decorum of all its social relations, and marriage is the most elementary and
useful of them all. The US Supreme Court in Maynard v Hill, 125 U.S 190,
210- 11 described marriage as "the foundation of the family and
society, without which there would be neither civilization nor
progress.”

There are a number of important aspects that should be noted relating to

marriage.
These aspects may cut across different types of marriages.

MARRIAGE AS A CONTRACT
A marriage can be defined as an agreement between a man and a woman
which imposes mutual rights and duties between them and creates a
recognized domination. "Bromley states that -a marriage is an agreement by
which a man and woman enter into a certain legal relationship with each
other and which creates and imposes mutual legal rights and duties.

The essence of the contract is in it being an agreement between a man and

a woman to live together, and to love one another as husband and wife, to
the exclusion of all others. Ref: Judgment of Lord Penzance in Hyde v
Hyde.
It creates a relationship of mutual and reciprocal obligations, typically
involving the sharing, of .a common home and a common domestic life and
the right to enjoy each other's society, comfort and assistance.

It is a contract with marked differences torn all or contracts. According to

Bromley's Family Law book Pg 20 Bromley (similarities and differences)
Hogget and Pearl in book " The family law and society" cases and materials
3rd Edition the authors observe that the definition of family is based on a
bundle of rights that may accrue in the event of marriage which include but
are not limited to;-

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 • Right to establish the legal father of a woman's children
• Right to establish the legal mother of a man's children
• Give husband/wife monopoly in each other sexuality
• Give husband/ wife partial// monopolistic rights to the wife's/
husband's domestic/ or labour service's
• Give spouses partial or absolute rights over property
• Establish a joint fund or property for the benefit of the children/
marriage
• Establish a social significant relationship between the husbands, the
wife's relatives

In English law, marriage is an agreement by which a man and a woman enter

into a certain legal relationship with each other and which creates and
imposes mutual rights and duties. So .marriage from this point is clearly a
contract and presents, similar problems to other contract. For example form
and capacity; and like other contracts it may be void or voidable Note: Unlike
other contracts it has distinct characteristics:
1. The Law relating to capacity is different from that of other
contracts
2. A marriage requires special formalities to 1 be observed or
contracted
3. The grounds that make a marriage void or voidable are
different from those grounds that make contracts void or
voidable
4. Unlike other contracts, a voidable marriage cannot be declared
voidable initio by rescission by one of the parties but may be set aside
only by a decree of nullity pronounced by court
5. A contract of marriage cannot be discharged by agreement,
frustration or breach. A part from death, it can be terminated only by
a formal legal act, pronounced by a court of competent jurisdiction.
6. Marriage is unlike other contracts, in that its terms are, laid down by

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 the state not by the parties themselves, nor can the parties
themselves agree to its termination.

MARRIAGE AS CREATING STATUS

The second aspect of marriage is more important than the first. It creates a
status that is, a condition of belonging to a particular class of persons (i.e.
married) to whom the law assigns certain peculiar legal capacities arid
incapacities.

Whereas parties to a commercial agreement may make such terms as they

think fit (provided they do not offend the rules of public policy or statutory
prohibition), the spouse’s mutual rights and duties, are fixed by law and not
agreement. A commercial contract may not affect the legal position of
anyone who is not a party to it but marriage affects the rights and duties of
third parties and the relationship of an individual with government bodies.

Some authors over the years have described marriage as a status not a mere
contract. Joseph Story in Commentaries on the Conflict of Laws writes: '
':
"Marriage is not treated as a mere contract between the parties;
subject, as its continuance, dissolution and effects, to their mere
pleasures and intentions. But it is treated as a civil institution, the most
interesting and important in its nature of any society. Upon the sound
morals, domestic affections and the delicate relations and duties of
parents and children essentially depend."

In the U.S Supreme Court case of Maynard V Hill, court observed that
“….while marriage is often termed by textbook writers and in court decisions
as civil contract founded upon agreement of parties and does not require any
religious ceremony for its solemnization, it is something more than a mere
contract. The consent of the parties is of course essential to its existence,

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but when contract to marry is executed by marriage, a relationship between
the parties which they cannot change is created.

Other contracts may be modified, restricted or enlarged, or entirely released

upon the consent of the parties. The relation of marriage once formed, the
law steps in and holds the parties to various obligations and liabilities. It is an
institution, in the family and of society without which there would neither be
civilization nor progress."

Cohabitation
This is an arrangement where a man and woman decide to live together as
husband and wife but decide not to go through any form of marriage.’ These
arrangements are not recognized as marriages in Uganda irrespective of the
lengths of time the couple may have stayed together or the number of
children. Cohabitation is generally seen as an immoral thing and liable to be
struck down as contrary to public policy.

In DI WELLS V. FARNES (1959), the Court stated that; “any attempt by

the woman to claim an interest in the house bought by the man with whom
she had been living by spelling out an agreement that they should buy it as a
joint venture was doomed to fail because it was founded on immoral
consideration.”
The Reflection of cohabitation is mainly to uphold society values. It’s argued
that by giving to the unmarried rights previously possessed only by the
married, the law would be weakening the institution of marriage and thus
undermining the family.
Causes of Cohabitation
a) One of the parties may be married to another person
b) High financial responsibilities to marriage
c) Fear of legalities
d) Regarded by some as a form of trial marriage

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 e) Others regard marriage as irrelevant.

Article 31 of the Constitution gives people above 18 years the right to marry
and form a family Corbett V Corbett 1979 II ALLER 33 court emphasized
that a marriage must be between persons of different sexes. Ormrod J. states
that sex is clearly an essential determinant of the relationship called
marriage because it is and always has been recognized as the union between
a man and woman. It is the institution on which a family is built and on which
the capacity for natural heterosexual intercourse is the natural element. He
further said, a person's sex is according to his/her birth regardless of any sex
change or operation.

By virtue of Article 31(2) (a) of the constitution, same sex marriages are
prohibited in Uganda.
Question: Every human being has a right to marry and form a family. Is the
state protection under principle 19 only therefore accorded to persons legally
married?

PROMISES TO MARRY
This refers to a promise to marry at some future date. At common law, such
agreements to marry were generally governed by the principles of law of
contract where a party was in breach of the promise to marry.
The intention of the law was to permit an injured party to recover damages
for the expense that he /she had incurred in contemplation of the intended
marriage.

A breach of promise to marry was enforceable in certain circumstances.

Common law courts overtime required that public policy should be put into
consideration when deciding as to whether an agreement to marriage could
be enforced or not. Two rents were required when looking at public policy as
criteria:

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 1. Recognition that it would be against public policy to push couples into
potentially unstable marriages because of a suit or repercussions for
breach of promise to marry.
2. Courts would look at particular facts and see if enforcing the
agreement wouldn't be contrary to public policy.

Evidence for breach of promise to marry may be in writing or does not need
to be expressly concluded, it can be inferred from conduct of the party. The
promise to marry must be corroborated with evidence. The evidence may be
in the form of letters, cards a ring, evidence of 3 rd party who heard what was
said birth of a child, and part payment of bride price.

In Woodman V Woodman (1892) 2QB 534, The plaintiff brought an action

to recover damages for breach of promise to marry, and evidence she used
to corroborate her case were 3 letters. The first letter by herself reminding
the respondent of this promise, the other letter by her brother requiring the
respondent to make his position clear and another by her pastor. The
respondent contended that the ring had dropped and she picked it up and
refused to return it to him. Court held that although silence did not amount
to consent, it had to look at the circumstances and evidence to corroborate
the plaintiff’s evidence.
In Bessela v. Stem (1977) 27 0 and G 28 The plaintiff gave evidence that
the defendant had seduced her and repeatedly promised to marry her. That
on another incident, the her sister had overheard a conversation between
defendant and her in which the plaintiff had told the defendant that "you
always promise to marry me but you don't keep your word and that the
defendant had told the plaintiff that he will give her money to go for a
holiday. Court held "the evidence of the sister was enough corroboration to
the plaintiff’s evidence, the promise to marry was proved to have been made
and the plaintiff was entitled to damages.

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However as a general rule, the promise to marry would not be enforced if it
is contrary to public policy. For instance in Spiers v Hunt (T930) 1KB 720,
the defendant who was about seventy years of age, and who to the plaintiff s
knowledge was a married man, promised to marry the plaintiff who was then
aged (thirty one) on the death of his, wife. Sexual relations between the
plaintiff and the defendant began in 1899 up to 1904. The defendant's wife
who was older than him suffered from a heart problem from which she was
expected to die suddenly and earlier.

However she did not die as early as expected. The defendant's wife died in
1907, on her eventual death the defendant refused to marry the plaintiff who
commenced action for breach of promise to marry. The court held that such
a promise to marry was against public policy and morals and not to be
enforced.

That the promise was unenforceable on grounds of public, policy. That to

hold such a contract enforceable would be introducing into society life a
dangerous and immoral principle or practice and it is only in the most
corrupt provisions of society that such an agreement will be settled as lawful.

There are 2 exceptions to this general rule

a) If the plaintiff can show that he/she lacked knowledge of the marriage of
the other party as illustrated in Shaw V. Shaw (1954)2 ALLER 638,
The plaintiff brought an action against administrators of the deceased's,
estate for damages of breach to marry made to her by the deceased.
Court states that the plaintiff being unaware at all material time that the
deceased was married, the court was under no duty to raise the question
as to whether the promise to marry was unenforceable arid contrary to
public policy. The action was maintained.
Singleton LJ said that public policy means that there are considerations of
public interest such interests can require courts to depart from their

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 primary functions of enforcing contracts to and exceptionally to refuse to
enforce them. Those are the considerations a judge should have in mind
when deciding to ^ exercise his discretion when a matter of public policy
is raised.

b) Public policy will-sot apply if the promise was made after a decree nisi had
been granted this especially for marriage contracted under the marriage
Act. Fender V Mildmay (1937)3 AER 402. In this case, the
respondent's wife petitioned for divorce on ground of the respondent's
adultery with the appellant, and a decree nisi was duly pronounced. On
two occasions after the pronouncement of a decree nisi, but before it was
made absolute, promised to marry the applicant immediately after it had
been made absolute. He refused to marry her and she brought an action.
Court held
(i) There was no rule of public policy which prevented the contract
from being enforced. If there are valid reasons / justifiable grounds
for the defendant to fail to fulfill the promise e.g. sickness,
frustration, the onus lies on the defendant to prove His/ her case.
That the whole position of married parties is changed and fixed not
by mere separation or lodging of a petition for divorce, but by the
pronouncement of decree nisi, and further period of waiting after
that decree is imposed is- in the public interest in order to secure full
disclosure before the court.
(ii) The enforcement of a contract is not against public policy unless the
impugned contract leads, or is likely to lead to injurious action.
(iii) The duty of courts is not to expound public policy but the doctrine
should invoked only in clear cases in which the harm-to the public is
substantially incontestable, and does not depend on the
idiosyncratic' inferences of few judicial minds.

REMEDIES FOR BREACH OF PROMISE TO MARRY

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Under common law breach of promise to marry would be actionable when
the termination has been communicated to the plaintiff or when the date of
marriage masses within preparation for marriage when there is no
indication that a marriage will be held at a future date. An aggrieved party
may sue for the following;-

Damages
General damages can be awarded for injured feelings or reduced
chance of marriage and special damages for expenses incurred.
In a Ugandan case of Larok V Obwoya (1970) HCB 36. The plaintiff
successfully sued the defendant who promised to marry her and got her
pregnant. Damages were rewarded for injured feelings and reduced chances
of marriage.

Engagement Rings
A party would be entitled to the return of gifts especially if they were given
by the plaintiff. However gifts may not be returned to the defendant if he/
she was the person in breach.
In Jacobs v Davis 191 7 II KB 330 In this case, the (lady broke off the
engagement and the man thereupon sued for the return of the engagement
ring.

Shearman J held that ..." although the origin of an engagement ring has been
forgotten, it still retains its character of a pledge or something to bind the
bargain or contract to marry and it is given on the understanding that a party
who breaks the contract must return it. Whether the ring is a pledge or
conditional gift, the result is the same.

In Cohen v. Seller (1926) 1 K.B. 536, the plaintiff and defendant

belonged to the Jewish faith. They agreed to marry in August 1923 and in
December 1923 the defendant handed to the plaintiff a single-stone diamond

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ring. No express condition accompanied the delivery of the ring. It was
however admittedly given and received as an engagement ring in
contemplation of marriage. The promise to marry was broken. The plaintiff
asserted that the defendant refused to marry her. The defendant on the
other hand asserted that it was the plaintiff who broke off the engagement
The court gave judgment for the plaintiff. The court noted that the defendant
had refused to carry out the promise. They awarded the plaintiff damages for
loss of the marriage.
(i) That a woman who has received a ring refuses to fulfill the
conditions of the gift must return it and so on the other hand, a
man who has without a recognized legal justification refused, to
carry out his promise of marriage cannot demand the return of the
engagement ring.
(ii)That if an engagement to marry is dissolved by mutual consent,
then in the absence of agreement to the contrary, the engagement
ring and like gifts must be returned by each party to the other.

It was found that it was the man who had refused to carry out his promise
and the woman was awarded general damages and the lady allowed to keep
the engagement ring.

AGREEMENT TO MARRY
Under Islamic law agreements to marry maybe entered into between the
parents of the intended spouses. Which means that until the contract to
marry and the actual marriage takes place; no contractual obligations arise
as between the intended spouses. Therefore no suit for breach of agreement
to marry can be instituted. However, where gifts or ornaments have been
exchanged between the two families, then these can be returned if the
agreement to marry is broken. This was the issue in Fazaldin Satardin v
Din Mahomed and Hajra Begum (1928) 11 K.L.R 41, where the girl’s
father entered into a betrothal agreement without her consent and she later

21
refused to marry the prospective suitor. The prospective suitor brought an
action where he claimed damages for breach of agreement to marry and in
the alternative he also sought an injunction to restrain her from marrying
any other man until he had recovered all his damages and the gifts he had
given. The court held that he could only recover the presents and the
ornaments he had given but could not recover any damages.

Under Hindu Law, a similar position is adopted where agreements are made
between the parents of the parties.
In Vishram- Dhanji v Lalji Ruda [1957] 1 EA 110, The respondent’s son
and the , appellant’s daughter in 1938, being each only a few months old,
were betrothed in India according to the rites and customs of the Hindu
community. Following the betrothal certain ornaments and clothing were
given by the respondent to the appellant for the prospective bride according
to Hindu custom. It was common ground that the Indian Contract Act applied
to this contract. The proper law to be applied was the law of India and if the
contract was valid by its proper law it would be enforced in Kenya, provided
that it was not an illegal contract in Kenya. When she was 12 the appellant’s
daughter was informed of the betrothal and had then indicated that she did
not wish to marry the respondent’s son and when she was 15 the respondent
was informed, either by her or by her father that the betrothal was broken
off. The respondent sued for damages for breach of contract and the
Supreme Court awarded special and general damages and ordered the
return of certain ornaments to the respondent. At the time the proceedings
were instituted the girl had been married to another suitor for twelve
months. The appeal was allowed by the Court of Appeal except for the order
of the Supreme Court for the return of the ornaments to the respondent. The
court farther held that an action in Kenya against the father of a prospective
bride for breach of a marriage contract made by him on her behalf based on
the proposition that the father could compel his daughter to marry as he had
agreed might not succeed as being contrary to public policy and contra

22
bonos mores.
Note that this case emphasizes the need for free will in a marriage contract
various defences exist to an action for breach of promise.

Agreement to marry under customary law

Under customary law agreement to marry normally take the form of
betrothals and the nature of the betrothal will differ between the different
communities whereby for some communities it is quite an elaborate formal
ceremony while for others it is a family affair with a few witnesses, therefore
the agreement under African customary law takes place between the
families of the parties, and not the parties themselves. The effects of a
betrothal under customary law is that on part of the woman she loses her
sexual freedom and cannot have any sexual or any relationship with any
other man and on the part of the man he is under an obligation to pay the
bride price.

On the part of the family, the family of the girl is bound to give away their
daughter and are under an obligation to keep, her chastity while the family
of the boy is under an obligation to pay the bride price. In the event of a
breach occurring, it has been held that under African customary law an
action of breach of promise to marry will not lie. This was held in muinde v.
muinde.

There are other remedies provided for under the Magistrates Act which
include actions for damages for seduction, and also actions for pregnancy
compensation.

A defendant is not bound by his promise where he establishes a false

representation, or fraudulent concealment in material particulars, of the
pecuniary circumstances or previous life of the plaintiff. The bad character of

23
the plaintiff will also excuse the defendant from performance of the contract,
unless he or she was aware of the plaintiff s character before making the
promise.

Physical or mental incapacity may give rise to a right to terminate the

engagement in limited circumstances. No disease or infirmity short of
absolute incapacity on the part of the defendant will avail him or her,
however, even if it is proved that the performance of marital duties would
endanger his or her life. Previous confinement in a mental hospital does not
per se render the agreement to marry void but supervening insanity will
afford a defence.

The fact that the defendant honestly and reasonably believed the plaintiff to
be unfit to marry is no defence if the plaintiff was in fact fit.
- -
Finally, it is a defence to an action for breach of promise that the plaintiff has
released or discharged the defendant from performance before any breach
of the contract occurs. The release may be express or implied.

Damages awarded in actions for breach of a promise to marry are

discretionary in nature. Exemplary damages may be awarded by the judge
and depending on the behaviour of the parties, the damages may be
aggravated or mitigated.

As already noted above, the gifts given, it is implied, where the contract is
broken, should be returned unless they were given unconditionally. But the
party at fault is' not entitled to benefit from their own wrong.

DOMICILE
This refers to habitation in a place with the intentions of remaining there

24
forever or permanently unless circumstances occur to" alter this intention.
Whicker V Hughes (1843) ALLER 460. In which court stated that domicile
means a permanent home with all Intention to permanently stay there unless
something happens to change that intention. In Mark v Mark (2005) UKHL
42 Baroness Hale said:
"Domicile...is a concept of the common Law. A person must always have a
domicile but can only have one domicile at a time. Hence, it must be given
the same meaning in whatever context it arises. It governs capacity to marry
or to make a will relating to moveable property; it is one of the factors
governing the formal validity of a will; the domicile of the deceased also
governs succession to moveable property and is the sole basis for
jurisdiction; legitimacy, to the extent that it is still a relevant concept.-is
governed by the law -of the father's domicile; domicile is one of the bases of
jurisdiction, not only in matrimonial causes but also declarations of status or
parentage; it is the sole basis of jurisdiction to make an ordinary adoption
orders, or a parental order. This is not an exhaustive list but it shows the
particular importance of domicile as a connecting factor in family law."

Domicile is very important for the following reasons.

i) It determines the validity of the marriage i.e. whether the parties
have contracted / celebrated their marriages according to the laws of
the "country of domicile Musinga v Musinga (1993) 6 KLR;160
ii) It determines the mutual rights, 'obligations of the husband, wife and
the children.
iii) It helps in determining property rights (between the husband and the
wife.
iv) Determining the legitimacy of the children.
v) Important in determining whether a. court has jurisdiction in nullifying
/ dissolving a marriage.

25
The courts will usually entertain proceeding of the dissolution or
nullification of a marriage if the marriage was celebrated in Uganda 8r if 3
the petitioner is of Ugandan domicile.
Read Section 1 of the Divorce Act which provides that nothing in this Act
shall authorize;
a) The making of any degree of dissolution of marriage unless the
petitioner is domiciled in Uganda at the time when the marriage is
presented. Kiggundu V Awori
b) The making of decree nullity of marriage unless the petitioner is
domiciled in Uganda at the time when the petition is presented or
unless the marriage as
solemnized in Uganda Thakkar v Thakkar Divorce Co. No. 3 of
2002.

Domicile should be distinguished from nationality which is acquired by birth

or operation of law.
See chapter 3 of the constitution.
It should also be distinguished from mere residence in a country without the
intention to permanently staying there.

The Black’s Law Dictionary pg. 523 defines domicile as a place at which a
person has been physically present and that the person regards as home; a
person’s true, fixed, principle and permanent home, to which that person
intends to return and remain even though currently residing elsewhere.
Domicile was also defined in the case of Robinah Erina Kagaya Kiyingi V
Doctor Aggrey Kiyingi Uganda High Court Civil Appeal No.41 of 2004 as a
country in which a person is or presumed to be permanently resident or a
person’s permanent home.

Therefore domicile is the status attributed to a person who is a permanent

resident in a particular jurisdiction. It can as well mean that a person is

26
domiciled in that country in which he either has or is deemed to have his
permanent home. Therefore, domicile depends on the fact of a person being
physically a resident of a place plus intention of remaining in a certain area.
Lord Canworth in Whicker V Hume [1853] H. L. L. Pg l24 said that “by
domicile, we mean home, the permanent home, and if you do not
understand your permanent home, I am afraid that no illustration drawn from
Foreign writers or foreign languages will very much help you to it” this
means that a person’s domicile is the place which one calls home, it is the
place with which that person is most closely associated. It < would as well
mean that a person can be domiciled in a jurisdiction even after they have
left it if they have maintained sufficient links with that jurisdiction or have
not displayed an intention to leave permanently.

Domicile should be distinguished from nationality which is the relationship,

between the state and an individual. Where the state and country co-exist,
the two may mean the same. However, where the country is federated
into different legal systems, nationality and domicile will be different for
example one might have American nationality and a domicile of Texas
which is a state in the United States of America or a British nationality but
a domicile of England. The difference between nationality and domicile is
further emphasized in the case of Robina Erina Kagaya Kiyingi V Dr.
Aggrey Kiyingi where it was stated that domicile must not be confused
with nationality for the latter is rarely a relevant factor where family
matters are concerned.

It is possible for a person to have a domicile in a county but without

nationality. Furthermore, a person may be a subject, or national of a state
but may have his domicile in some other area which has its own system of
law and courts as different from where he or she is a national. Hence, the law
of domicile is one of ways of determining which law will be used in a case
involving such a person who is a national of a certain state but with a

27
 domicile in another state.

There are several types of domicile

a) Domicile of origin or natural domicile
b) Domicile of choice

The other type of domicile was dependent domicile under S. 14-16 of the
Succession Act which was nullified pursuant to Law U - Vs Attorney
General Constitution Appeal 2007)

Domicile of Origin
This refers to that domicile acquired by birth. Therefore children normally
acquire the domicile of their father. However, in case a child is born after the
father's death its domicile may depend on the laws of the country. Many laws
in such cases allow the mother to keep the domicile of the child.

Domicile by Choice
A child's domicile of origin remains with him unless a domicile of choice-is
established. This arises "when a man fixes voluntarily his sole or chief
residence in a particular place with an intention of continuing to reside there
for an unlimited time", as Lord Justice Buckley outlined in IRC v Bullock
[1976] 1 WLR 1178

It is acquired when a person attains the age of majority, There are 2

essential requirements that one must satisfy to prove domicile of choice

a) One must have/ show the intension to stay in a place permanently

b) One must prove some overt-act to demonstrate this intention

28
The classic definition of domicile of choice is contained in the case Udny v
Udny (2001) 1 FLR 921, which was decided in 1869. In that case, it was
:
held

"Domicile of choice is a conclusion or inference which the Law derives from the fact
of a man fixing voluntarily his sole or chief residence in a particular place, with an
intention of continuing to reside there for an unlimited time.

“To acquire a domicile of choice, a person must reside in a country with the
fixed intention of settling there and making it his or her sole or principal
home for an indefinite' period. Residence simply-means 'physical presence in
a country as an inhabitant of it'. "Having acquired a domicile of choice, a
person retains it until it is abandoned. Once abandoned, it is possible to
acquire a new one. But if there is a hiatus, the domicile of origin revives.
"Abandonment only takes place when the person has left the country with no
further intention of ever residing there again.

In Thornhill V Thornhill (1965) EA 268. Where the husband petitioned

for dissolution of his marriage on grounds of his wife's adultery with
another man, the issue before court was whether the-husband had
acquired the domicile of choice in Uganda. Evidence showed the petitioner
was born in Wales in 1918, he lived in Ceylon, was educated in the UK and
came to Uganda in 1961 where he was employed by a company to
manufacture tea. The petitioner had a substantial holding in this company.
In allowing the petitioners claim, court held that the petitioner had proved
that acquisition of domicile of choice and his petition can't be affected by
the lack of Ugandan nationality.

In Titiana Adebeyi v Adebeyi Adenji Divorce Case No.2 of 1990 Justice

Mukasa-Kikonyogo, J. held that although both the petitioner and respondent
were non- Ugandans and their marriage had not been solemnized in Uganda,
onvcvidence adduced by the petitioner, the court was satisfied that she had

29
acquired a domicile of She had proved that she had settled intention to stay
in Uganda permanently.

In Drogen Beroceh v Collen and Gibbon, court held that although the
petitioner had stayed in Uganda for 2 ½ years and proved ownership of
property, it wasn't enough evidence to show that he had acquired a
domicile of choice in Uganda.

In Musinga V Musinga, the petitioner's domicile was held to be Ukraine

and not Uganda since she was only in Uganda for 5 years as a result of her
employment however the court had jurisdiction to hear the case because the
2nd marriage between the parties was solemnized in Uganda.

Dependent domicile can be defined as that domicile acquired by minors,

married and mentally ill persons (Principles of Conflict of Laws Pg 194). This
is in effect that no dependent person can acquire a domicile of choice. The
domicile of such a person depends on and changes with the domicile of the
person on whom they are legally dependent.
.
Section 14 of the Succession Act Cap 162, states' that by marriage a
woman acquires the domicile of her husband if she had not the same
before. Section 15 states that subject to subsection (2) the domicile of a
wife during the marriage follows the domicile, of her husband. In the case
of Joy Kiggundu V Horrace Awori (2001) KALR 374 , Horace the
husband of the petitioner was living and a resident of Nairobi in the
matrimonial home of the couple. The wife filed for divorce proceedings
against her husband on ground of adultery and cruelty in Kampala High
Court. Court framed the issue of domicile that is whether the High Court at
Kampala had jurisdiction in divorce proceedings where the husband of the
petitioner was domiciled outside Uganda. Court held that a wife, as long as
she is not judicially separated from the husband; her domicile is that of her

30
 husband. It is my observation that the above sections are in effect that a
married woman acquires the domicile of her husband and her domicile
changes with that of her husband even if they live apart.

This is also a position that was held in the case of Lord Advocate Y
Jaffrey (1921) 1 A.C 146 where a husband and wife were domiciled in
Scotland. The Husband contracted a bigamous marriage in Queens land
"with the consent of the wife, while the wife remained in Scotland where
she died and proceedings were brought in Scotland to determine the
domicile of the wife. The court of appeal held that the wife was domiciled in
Queens land even though she had never visited there.

The above sections and case affirm the fact that the wife’s domicile is
dependent, on the husband’s domicile.

Termination of domicile
However, a wife can lose a domicile of dependency of the husband dies. In
the case of Sculland Deed Smith V Brock and others [1957] 1 Ch 107,
Sculland a testrix left her husband in 1902 and never lived with him again.
The husband had an English domicile which he retained till his death in
1955. The wife lived in various places till 1946 or 1947 when she settled in
Guernsey with the intention of residing there until her death. The question
was whether at the time of her death she was domiciled in Guernsey. The
court held that after the death of her husband, s (he showed her continued
intention to reside permanently in Guernsey and she had a domicile of
choice in Guernsey at the time of her death.

A wife can as well lose her dependent domicile through a decree of divorce

31
and not by order of separation. Section 15(2) of the Succession Act Cap 162
states that the domicile of a wife no longer follows that of her husband if
they are separated by a competent court. This means that when a divorce
petition is successful, then the dependent domicile of a wife seizes to exist.
She can acquire a domicile of choice.

Another inference from this provision is that an order of separation is not

enough to guarantee the loss of a wife’s dependency domicile which is
attributed to her being married. It must be a divorce order issued by a
competent court. In the case of A.G of Alberta V Cook [1926] A.C 444, a
wife acquired a decree of judicial separation from her husband, both spouses
at the time being residents in Alberta. She then presented a petition for
divorce. Her husband had retained his domicile of origin in Ontario. The court
of appeal dismissed the suit on the ground that it had no jurisdiction as the
respondent had a domicile of Ontario and that an order of separation cannot
amount into a divorce which in turn means that a wife can have a domicile of
choice separate from that of her husband. Lord Marrivel in his judgment
explained the rational that “the contention that a wife judicially separated
from her husband is given choice of a new domicile is contrary to the general
principle on which the unity of the domicile of the married pair depends”
Therefore, in regard to a woman losing her depend domicile, it can happen
only when there is a divorce order instituted by a competent court.

Another category of persons with dependent domicile is that of minors.

Minors have a dependent domicile and it is acquired upon birth where a
legitimate child acquires the domicile of its father while an illegitimate child
acquires the domicile of its mother. Section 13(1) of the Succession Act Cap
162 states that subject to subsection (2), the domicile of a minor follows the
domicile of the parent from when the minor derived his or her domicile of

32
origin. Section 16 of the same Act states that except as provided in section
13, a person cannot during minority acquire a new domicile. The above
sections mean that dependent domicile of a minor would change depending
on the domicile of the parent for example, a legitimate child born to a father
domiciled in Uganda would acquire a dependent domicile in Uganda.
However, in the event that the father acquires a new domicile of choice in
Kenya, the child’s domicile would also change and would acquire a domicile
of Kenya.

In cases where the father of a legitimate child dies, the domicile of the child
will follow that of the mother except for situations where the mother decides
to move to a new country leaving the child behind. For example in Re
Beaumont a widow who was domiciled in Scotland with her minor children
decided to remarry and went to England where she lived with her new
spouse. She took all her children except one whom she left to stay with an
aunt in Scotland. The court held that the Domicile of the other children, was.
England. However, that of this one child continued to be Scotland.

In the case of adopted children, in Uganda, the child will be treated as if he

or she was the natural child of his adopted parents. This means that he or
she will have the foster parent. The Children Act Cap .59 Section 43(3) states
that a foster parent in whose care a child is committed shall, while the child
remains in his or her care, have the same responsibilities in respect of the
child’s maintenance as if he or she were the parent of the child. I submit that
all the attributes of the foster parent shall be deemed to apply to such a
child and dependent domicile inclusive.

Section 13(2) of the Succession Act Cap 162 states that the domicile of a
minor does not change with that of the minor’s parent if the minor is married
or holds any office or employment in the service of the government, or has
set up with the consent of the parent in any district business. This section

33
means that a minor loses his or her domicile of dependence if he or she
satisfies the above situations in which case domicile of dependence sizes to
exist.

Mentally incapacitated or people with mental disorder have a domicile of

dependence. Section 17 of the Succession Act provides that an insane
person cannot acquire a new domicile in any other way other than by his or
her domicile following the domicile of another person. This section means
that mentally incorrect persons lack the legal capacity to form an intention of
remaining in a country permanently or indefinitely. In the case of Urgahart
V Butter field, it was stated that if an independent person becomes insane,
he becomes incapable of acquiring a domicile of choice because he is unable
to exercise any will. This serves to mean that such an insane person acquires
dependent domicile. The section also means, that even if he or she is of
majority age his domicile cannot be changed by him. His or her domicile will
be dependent on another person.'

Dependency domicile is relevant in Uganda today.

Dependency domicile enables children without parents to acquire a sense of
belonging, acquire homes, love and care of parents. Section 52 states that a
foster parent in whose care a child is committed shall while the child remains
in his or her care, have the same responsibilities in respect of the child’s
maintenance as if he or she were the parent of the child. This means that the
adopted minors will have the domicile of his or her foster parent and this is
because they are to treat the child as if they were the parents of the minor
and it is the duty of the foster parent to [care for the minor. This provision
means that such an adopted minor will as well enable the adopted child
acquire the dependent domicile of the foster parents which as well ensures a
sense of belonging and love to the child.

Furthermore, dependent domicile enables foster children to have a right to

34
inherit property. The children Act Cap 52(1) tis to the effect that where an
adopter dies intestate, his or her property shall devolve in all respects as if
the adopted child were the natural child of the adopter. It also means that
such an adopted child will have access to the property of the foster parent as
if he or she was a biological child of such parent. The domicile of this child
will as well be regarded as dependent on the foster parent.

Dependency domicile is relevant in Uganda in that in case of a legitimate

child whose parents later divorce and the father does not provide for the -
child’s domicile, the child’s domicile will become that of the mother. This
would be illustrated by the case of Hope V Hope where Lord Mac Dermott
L.C.J said that “the.-father’s domicile control must be based on the authority
and responsibility that, the farther has to act for his child.” in this case, the
mother had divorced from the father and the father was being responsible.

Dependency domicile simplifies the question of determining an individual’s

personal law because it provides a relatively simple and more way of
ascertaining solutions in most cases thus spouses and lawyers are able to
predict the position of the law and which law is to be applied to someone’s
case. Personal law may be defined as the law of the country to which a
person primarily belongs especially for the purpose of various matters
maters of family law and succession.

The case of Joy Kigundu Y Horace Awori is an example of cases where

domicile of the husband was used to know the personal law that would be
applied to the man in a divorce matter. The husband was a resident of
Uganda but with Kenyan domicile which meant that the Kenyan law was
applicable to him and not the Ugandan law in a divorce matter

The case of Aslandis Y Aslandis [1967] E.A 10 a wife petitioned on the

respondent’s domicile in Uganda, it was proved that he came to East Africa

35
with a. Greek domicile of origin but born in Egypt. He moved from Kenya to
Uganda in 1957 and continued to live in Uganda since he was a sale
proprietor of a business in Uganda'. The respondent also testified that he
intended to also stay in Uganda indefinitely. The respondent however left the
wife and decided- to reside with another lady and child. It was held that he
was domiciled in Uganda. He had acquired a domicile of choice in Uganda
hence his personal law to handle such a matter was the Ugandan law since
he was domiciled in Uganda.

The domicile of dependence creates unity between parties for example

between married couple since the domicile of a wife is dependent of the
husband’s domicile. The rule was based on the principle of the unity of
husband and wife in marriage. Marriage was defined in the case of Hyde Y
Hyde as the “voluntary union for life of one man -and one woman, to the
exclusion of others. This case emphasizes unity in marriage and which unity
is also a depiction in dependence domicile. In the case of Lord Advocate V
Jeffery similarly in the case of A.G of Albert Y Cook where Lord Marrivale
said “the contention that a wife, judicially separated from her husband is
given a choice of new domicile is contrary to the general principle on which
the unity of the domicile of marriage pair depends.” It is my submission that
dependent domicile serves to ensure unity in a home in Uganda since a wife
and husband will actually feel that they are important to each other even to
the extent of dependent domicile.
The law of dependence domicile is relevant in Uganda in that it has made
legal matters that arise over disputes between persons to be easily solved.
This is because there is no need to use two different laws of different
countries to handle matters and it has also provided to different people a
sense of belonging and identification. In the case of A. G of Albert V Cook,
the dependency domicile was used.

However, the law of domicile in Uganda has demerits which include the

36
following;
The wife is deemed to be domiciled, in the country of her husband whether
she has not been there even though she does not have connections in the
husband’s country. In this regard, dependence domicile is unrealistic to the
extent that a wife who has never been to the husband’s home country is
considered to be domiciled in the husband’s country. For example, if one
marries a wife from Rwanda, she will acquire a Uganda domicile much as she
has no any other relations in Uganda.

This unfair law was witnessed in action in the case of the Lord Advocate Y
Jaffrey where the husband was in Queens land and the wife was in Scotland
where she died and proceedings were brought to Scotland. The court held
that even though she had never been in Queens land, her domicile of
dependence was there to establish the husband’s domicile which would in
turn help to know the court’s jurisdiction in handling a divorce matter. This is
an unfair law because the wife should have the independence and choice of
her own domicile other than the relying on the husband’s domicile as a
determinant factor of the wife’s domicile.

Furthermore, the law of dependent domicile is in utter contravention with Art

33(1) of the constitution' of Uganda which states that women shall be
accorded full and equal dignity of the person with men. The concept of
dependent domicile is to the effect that a wife’s domicile is dependent on the
man’s domicile which is a clear contravention of the constitution hence it
discriminates between persons and does not accord full equality of women
with men.

In conclusion, the law of dependent domicile is relevant to Uganda because it

helps in the solving of divorce issues, succession matters and contracts with
minors whose domicile is dependent on their parents. It is my humble
submission the law of dependence domicile of married women in Uganda be

37
revised to meet the current social trends where women are to have equal
and full dignity with men. Moreover, the law of dependent domicile in regard
to the wife’s domicile being dependent on the husband’s domicile in United
Kingdom from which Uganda adopted her laws by the 1902 Order in Council
of which were abolished in the United Kingdom in 1973 and yet Uganda still
applies it much as it was adopted from there. Wives in the 'United Kingdom
can acquire a domicile of choice and their domicile no longer depends on
that of the husband.

Domicile of dependence of a married woman was abolished in United

Kingdom because this new rule was to reflect the social economic changes
and situations of the current developed society other than the ancient days
where women were discriminated against. In that spirit of respecting the
dignity of women, the Matrimonial Proceedings Act of 1973 was passed.
Uganda should also borrow a leaf and pass such a law which respects the
position of women in society. In IRC V Duchess of Portland [1982] Ch
314 where a wife had a domicile of origin in Queebic married a husband
domiciled in England. The issue was whether hex domicile was in England. It
was held that the wife was to retain her domicile of choice. This should be
the same position to be applied in Uganda.

TYPES OF MARRIAGE
"There are various types of marriage recognized in Uganda and Christian
under Marriage Act Cap 251
• The Customary marriage under taws and practice of customary law
- Customary Marriage Registration Act Cap 248
• The Islamic Marriage under Marriage and Divorce of Mohammedan
Act Cap 252
• Hindu marriage under the Hindu Marriage and Divorce Act Cap 250.

Alai V Uganda 1967 EA5 96, the issue was whether the offence of

38
adultery provided for under S.150 of PCA (154 now) applies to all types of
marriages whether it is only restricted to monogamous marriages and does
not apply to’ protection of polygamous marriages." Court held any married
woman means only the woman married to any man irrespective of the form
of such marriage provided that such a marriage has been conducted in one
of the forms recognized under the law of Uganda.

39
 CUSTOMARY MARRIAGE

Law Applicable

The 1995 Constitution of Republic of Uganda

Customary Marriage Registration Act .
Judicature Act
Magistrates Court Act (MCA)
Customary Laws" .
Case Laws.

Customary Law

Customary Law is defined under S.1 of the MCA as rules of conduct which
govern legal relationships and they are established by usage and are not
part of common law or laws enacted by the parliament.

Article 2 of the 1995 Constitution provides for the supremacy of the

Constitution and any laws or customs that are inconsistent with any of the
provisions of the constitution are to the extent of their inconsistency void.

The Judicature Act provides that customs will be applicable in so far as they
are not inconsistent with common law doctrines of equity and principles of
natural justice.

Whereas customary law may not written, it must be notorious and Courts
must have taken judicial notice of it before being applied. In the case of
Kimani v Gikanga (1965) Court held that where an African custom is
neither notorious nor documented, it must be established for the court's
guidance by the party intending to rely on it.

In practice, if the relevant customary law is applicable of being judicially

40
noticed, it should be proved by evidence or expert opinion adduced by the
parties. Kajubi v Kabali (1944) Vol 11 E. A.C.A 34. Therefore customary
law should be proved- unless the particular rule is so notorious and courts
should take judicial notice of it.
Customary Marriage

It is defined in Section 1 (b) of the Customary Marriage Registration Act as a

marriage celebrated according to the rites of an African community where
one of the parties is a member of that community or a marriage celebrated
under part 111 of the Act.
The legal position of customary marriage came under attack in the case of R
v Amkeyo [EAPLR] 1917-1918, Hamilton j held “in my opinion the use of
the word “Marriage” to describe the relationship entered into by an African
native with a woman of his tribe according to tribal custom is a misnomer
which has led in the past to a considerable confusion of ideas. I know of no
one word that correctly describes “wife purchase" is not altogether
satisfactory, but comes much nearer to 'the idea than that of "marriage" as
generally understood among civilized people".

The ruling above was a misconception of the customary marriages and the
role of bride price and was overruled in Alai Y Uganda where the issue
before court was whether the offence of adultery also applied to polygamous
marriages (Muslim marriages are potentially polygamous). Court held that it
applied to all forms of marriage recognised by the people of Uganda,
including customary marriages.

There is no general or uniform customary law in Uganda. Each recognized

tribe is guided by different customary beliefs and practices, which are not
necessarily similar. For customary law to be enforceable, it must not be
repugnant to natural' justice, good conscience and equity as provided in the
Judicature Act.

41
Customary marriages are thus celebrated within the legal confines of
the rules that regulate the applicability of customary law in Uganda.

Customary Marriages are potentially polygamous. This means that a

man can take on more wives if he so chooses when the marriage with
the first wife is subsisting. It is not a monogamous marriage. It is
polygamous in nature.
This is the main distinction with a marriage under the Marriage Act
which is essentially monogamous.

The 1995 Constitution in the schedules. Lists the indigenous

communities and recognized to be found in Uganda. It follows that as
long an African tribe is recognized to be belonging to an indigenous
community in Uganda, the members of that tribe are permitted to
celebrate customary marriages following their customs and practices.

Preliminaries for Customary Marriages

Preliminaries before a customary marriage is concluded vary and

depend on custom and the rites of each community.
See Section 1 of the Customary Marriages Registration Act.

Generally, the procedures preceding the solemnization of customary

marriage are in accordance with the customs and rites of the ethnic
group of one or both parties to the intended marriage.

However, across many communities, there are celebrations that

initiate children from childhood into adulthood. In those celebrations
and the different rites of passage, candidates are prepared through,
counselling and mentorship to be ready for marriage.

42
Customary marriages are usually a community and family affair not
individual. The participation, of family and community in the
preparation and celebration of marriage vital.

In some tribes, initial visits which could be one or more whose objective is to
secure the familiarization of the two families kick starts the preliminary
event, which concludes in an introduction ceremony that seals the marriage.

Essential Requirement for a Valid Customary Marriage

1. Minimum Age for Marriage

Section 11 Act requires the male party to have attained 18 years and the
female to have attained 16 years in order to qualify to contract a customary
marriage. The marriage & Divorce Bill has set the age of all marriages
including customary marriages to m accordance with the Constitution age for
carriage which is 18 years for both parties.

2. Consent
The customary marriage must celebrated with the free consent of the parties
to the marriage.

3. Prohibited Degrees of relationship

Parties within prohibited degrees of relationship through, marriage or blood

cannot legally celebrate a customary marriage.-The Act in the Second
Schedule lists the categories of persons considered to be within the
prohibited degrees whether legal or natural.
See S. 11. -

43
4. Payment of-Bride Price

It is a principle of customary law in .Uganda that the payment of bride price

is an' essential ingredient of a valid customary Law marriage. The term 'bride
price is often used interchangeably in Uganda with 'dowry 1 when discussing
customary law.

Dowry stricto sensu means the property which a woman bungs to her
husband. In Mifumi (U) Ltd & 12 Ors v Attorney General Constitutional
Petition No 12 of 2007 the court making reference to Wikipedia explained
that dowry is paid to the groom, or used by the bride to help establish the
new household, and dower which is property settled on the bride herself by
the groom at the time of marriage.

On the other hand, 'bride price' may be defined in reference to a Nigerian

Case of Ibikade v Aize where Old J stated
". . . any sift or payment, in money, natural produce, brass rods, cowries or
in any

other kind of property whatsoever, to a parent or guardian of a female person

on account of a marriage of that person which is intended or has taken
place".

In Mifumi v AG the court explained that in anthropological literature, bride

price has been explained in market terms; as payment made in exchange for
loss to the family of the bride of the bride's labor and fertility within her kin
group. The agreed bride price is generally intended to reflect the perceived
value of the girl or young woman. The court in this case observed that this
was a misconception. That the same culture may simultaneously practice
both dowry and bride price.

44
Thus essential characteristics of bride price may be summarized as follows: it
is a gift or payment, it may take the form of property, natural produce or
some other form of property; the payment is made to the parent or guardian
of the bride-to-be on account of the marriage of the female person and it is
paid in respect of a marriage .which is intended or has taken place.

The court in Mifumi held ", the custom of bride wealth as practiced in
Uganda has been the subject of numerous judicial decisions in all regions in
Uganda and thus held that bride wealth as practiced by several Ugandan
tribe's is a custom of sufficient notoriety that has been given judicial notice
by Ugandan Courts without the requirement of further proof ".

Whether father bride price takes the form of a gift or payment depends on
the customary law of each ethnic community In Uganda. Historically/bride
price took the predominant form of property like livestock or produce. With
modern times, money payment and other sophisticated forms of property
have replaced the traditional terms of gifts and items given for bride price.

Quantum of Bride Price '

There is no uniformity of the rules governing the quantum of bride price

throughout
Uganda. Given that the items or gifts given as bride price vary in each tribe
similarly there is no uniform measurement of the quantum applicable. It
varies from one tribe to another. It may be influenced and determined by the
social status of the intending partners, education levels, religious affiliations
etc.

Many parts in Uganda have in the recent, past witnessed and exchange-of
sophisticated property like-cars, fridges, cookers etc. Some sections of the

45
public have criticized this trend as causing social ills in distorting the original
1 concept of marriage to commercialization of the institution.
There is concern also that this" will go a long way in preventing young
men who cannot afford the large sums of money demanded by parents
of bride-to-be from getting married.

How much is actually paid in each may depend on the practice in each
tribe, the capacity of the bridegroom's family, the outcome of bride price
negotiations between, the two families.

When Is Bride Price Payable

Although customary law provides for the payment of bride price, it does
not insist that the payment must be completed before the marriage is
contracted. But at least part-payment must be made before a valid
marriage can be performed.
The validity of a marriage does not depend on full payment of the agreed
bride, price prior to the marriage.

Person to Whom Bride Price is Payable

A father is the right person legally entitled to receive bride price in

'matrilineal societies in Uganda. In his absence, the right devolves on the
male head of his immediate family or the guardian of the girl or a person in
loco parentis becomes entitled. The right to the bride price is not only that of
a father but also some members of his family.

Effect of Payment of Bride Price

The payment of bride price or part thereof does constitute valid customary
marriage law among Ugandan tribes.

46
 Read; Ogwang v Ojok 1971 HOB and reconcile with Wango v Manano
(1958) EA

Constitutionality of Bride Price.

In the wake of increased forms of domestic violence and abuse of women
rights, the question has arose in the recent past whether bride price is
constitutional or it promotes violence, torture and commercialization of
women. This led to a cross section of people calling for its outright abolition
on grounds that it is unconstitutional.

In Mifumi (U) Ltd 6 12 Ors v Attorney General Constitutional Petition

No 12 of 2007, the petitioners challenged the constitutionality of the
customary practice of demand for, and payment of pride price. They
petitioned on grounds that
i) Bride price as a condition precedent to a valid customary marriage
is contrary to Articles 31 (3) of the constitution which requires free
consent and the demand of bride price makes the consent
contingent upon demands of third parties.
ii) The payment of bride price by men for their wives as demanded by
custom from several tribes in Uganda leads, men to treat their
women as mere of the custom can be possessions from whom
maximum obedience is extracted, thus institutionally protected
custom of giving and demanding a refund of bride wealth and m as
much as any excesses in the enjoyment legislatively contained.

Celebrating a Customary Marriage

After the customary-law requirements as to capacity and bride-price

have been met marriage itself is contracted. Among most tribes in
Uganda, there is no marriage; contracted until the formal handover of
the bride takes place, in most cases, the handover ceremony culminates

47
 into an Introduction Ceremony that cements the marriage.

Registration
Under the Act the customary Act-section 6 thereto requires that not later
than six months from the time the ceremonies for customary marriage have
been concluded; the marriage mus.t be registered. Under Section 37 any
customary marriage celebrated before the decree came into force was
supposed to be registered within five years.

The parties who have concluded the customary marriage are supposed
approach the Registrar's office in the district where the marriage took place
with two witnesses who were present on the day of the .marriage. Under S 6
(3), the registrar in addition to registering the marriage, should record the
marriage settlement. (S. 7 & 9)

Thereafter, the parties are entitled to be issued with a customary certificate.

Late registration of the customary marriage is possible on payment of a fee.

Effect of Registration

Under S. 10 of the Act, the certificate once issued is-conclusive evidence of

such marriage having taken place. Under S. 20, failure to register the
marriage does not validate an otherwise valid marriage-"although 'it is an
offence punishable by payment of a fine.

In Worxgo v Dominiko Manano [1958] E.A The judge held that the court
is not obliged to look only to registration to ascertain whether the
respondent is married; the bride price paid although less than that
demanded by the bride's father was greater than that permitted by the
District Council is by-law and according to native custom, of which the court
takes notice. That is sufficient evidence of the woman's marriage to the
respondent.
48
TYPES OF MARRIAGE

There are various types of marriage-recognized in Uganda.

• The Civil and Christian under Marriage Act Cap 251

• The Customary marriage under taws and practice of customary
law- Customary Marriage Registration Act Cap 248
• The Islamic Marriage under Marriage and Divorce of
Mohammedan Act Cap 252
• Hindu marriage under the Hindu Marriage and Divorce Act
Cap 250.

Alai V Uganda' 1967 EA5 96, the issue was whether the offence of
adultery provided for under 150 of PCA (154 now) applies to all types of
marriages whether it is only restricted to monogamous marriages and
does not apply to protection of polygamous marriages." Court held any
married woman means only the woman married to any man irrespective
of the form of such marriage provided that such a marriage has been
conducted in one of the forms recognized under the law of Uganda.
Read Rex V Amkeyo 1917 EA 14, and contrast with Alai v Uganda 1967
EA 596
The Civil Church marriage

The best definition of the Christian marriage is given in Hyde (1866) LR

I PED 130, the petitioner, an Englishman, met his wife; the respondent,
in London. Both were Mormon. They went to Salt Lake City Utah (at that
time a Federal Territory, not a state) in United States, where they
married. The marriage was celebrated by Brigham Young the President of
the Mormon Church according to the rites and ceremonies of the
Mormons. The petitioner went on a mission to the Sandwich Islands
leaving the respondent. At Sandwich Islands he renounced the Mormon
faith. A sentence of excommunication was pronounced against him and
49
his wife declared free to marry again. She contracted marriage according
to the Mormon faith at Salt Lake City with the Co-respondent with whom
she had since cohabited. This was the adultery complained of by the
petitioner in his petition for dissolution of the marriage. The evidence
was that at the time when the marriage between the petitioner and the
respondent was celebrated, polygamy was part of the Mormon doctrine
and was the common custom in Utah.

The Petition was dismissed as there was no marriage as understood-in

Christendom although there may have been a marriage by the lexi-loci
and at the time of contracting both the man and were single and
competent to contract marriage.

Lord Penzance stated "am convinced that marriage as understood by

Christian Law may be defined as voluntary union for 1-ife of one man
and one woman to exclusion of all others."
The definition sets out 4 elements of Marriage under the Marriage Act
which is essentially based on the English Matrimonial Causes Act where
marriage is based on Christian teaching and understanding.
• It must be voluntary Parojoic v Parajoic 1959 1 ALLER
• It is for life except in cases of death, divorce or separation by
judicial process.
• It must be monogamous; neither party should contract
another marriage as long as the original union still-subsists.
• Nachimson V Nachimson 1930 P 217, CA Chad V Chad 1970
2 ALLER 721
• It is heterosexual
In Corbett v Corbett 1971 ALLER 36 the parties went through a ceremony
of marriage in September 1963. At that time the petitioner knew that the
respondent-had been registered at birth as of male sex and had in 1960
undergone a sex change operation for the removal of her male sexual organ

50
and replaced it with an artificial female organ and had lived as a woman
since then. In December 1963, the petitioner filed a petition for declaration
that the marriage was null and void since the respondent was a person of
male sex and alternatively for decree of nullity for non-consummation. The
respondent by her answer asked for a declaration of nullity for the
petitioner's incapacity to consummate or willful refusal to consummate.

The learned judge in nullifying the union came to the conclusion that a
person's biological sex is fixed at birth and can't be replaced by artificial
means. That being so, the respondent who was male at birth wasn't a
woman and the marriage was therefore void because in a marriage the
parties must be male and female.

In Uganda, Article 31 of Constitution also prohibits same sex marriage by

allowing marriage only between a man and woman.

Section 145 of PCA which provided for unnatural offences states inter alia
that any person who has carnal knowledge of any person against the order of
nature commits an offence.

Pre Requisites for a Church marriage.

Marriage Act (MA 251) spells out requirements which parties to an intended
marriage must satisfy prior to the marriage. Some are substantive and
others procedural.

Residence. The Act provides inter alia that at least one of the parties to the
intended marriage must have resided in the district where the marriage is to
be celebrated for at least 15 days prior to the marriage ceremony and the
grant of a certificate.

51
 a) Age. Each of parties not being a -widow/ widower must be 21 years
or if he /she is under age then consent of the parents must be
sought.
Question: Does section (17) in respect to consent, including section 18
and 19 contradict Art 3.1 of the Constitution which gives 18 years.

b) Consent. Section 17 of the Act. In Robert V Robert 20 (2)

KLR 6, this father of the defendant refused to consent to his son's
intended marriage on grounds of the responsibilities it will bring to
the minor and the fact that they were of different races. Son
petitioned court, court in dismissing the petition held that where
consent is unreasonably withheld then the court can go ahead and
give its consent overriding the Section 19 gives court authority to
do this.
c) Prohibited degrees. Parties should not be within the
prohibited degrees of marriages either by relationship of blood/
kindred or affinity.

The Act however does not expressly spell out the categories of person
within the prohibited decrees of marriage. Reference can be made to
section 149 of PCA provides for the offence of incent and lists out the
different categories of incent. Section 1 (d) of Customary marriage
Reg. Act cap 2.48 (CMA) and the 2 nd schedule to the Act also provides
for the prohibited degrees of kinship.

In Bruno Kiwuwa V Ivan Surunkuma and Juliet Namazi HCCS 52

2006
The plaintiff, father of 2nd defendant instituted a suit to prevent celebration
of a marriage between. 1st and 2nd defendant on ground that both
defendants like the plaintiff being Baganda by tribe and belonging to the
Ndiga clan cannot by reason of custom contract such a marriage. Among

52
 the Baganda, clan mates cannot contract a marriage under the MA or the'
laws of Uganda. Defendants argued that the custom in- question does not
apply to their intended Christian marriage under the Marriage Act. In
allowing the plaintiff's case, court accepted the custom of Baganda and
held inter alia that-they find no reason why the custom in Issue should only
apply to customary marriage and not marriage under the Marriage Act.

See: East African, Journal of peace and human rights Volume 13, 2, 2007
Kakungulu Mayambala.

(e) None of the parties must be married either under customary law or MA
to any other person than the intended spouse. Sec 36 any person married
under this act shall be incapable during the continuance of such marriage
of conducting a valid marriage under any customary law.

PRELIMINARIES FOR MARRIAGE

The act provides for procedural requirement's to be certified / fulfilled -
prior to the marriage.
(i) Notice under section: 6 one of the parties to the intended marriage
is required to give notice to the registrar who enters the notice in
the marriage notice book which is open for inspection during office
hours as provided by S.9. The Registrar shall also publish a copy of
such notice and fix it on the outer door office to be kept exposed
there until the grant of a certificate permitting the parties to marry
or till 3 months have elapsed.
(ii) After a notice is lodged the registrar waits for 21 days before the
parties can get married at the lapse of 21 days and if no objection
to the intended marriage is lodged, then the 'registrar will issue the
parties a certificate' intending them to marry.
(iii) The marriage should take place after 21 days of the notice have
elapsed but within 3 months from the date of the notice Section

53
 10 and 11 of the Act.
CAVEATS

Where there are objections to the intended marriage, a caveat may be

lodged as provided by S.13 by either a person whose consent is required
or by a person who may know of any just cause why the marriage should
not take place.
Lenama V Fanuel 1902 ALLER 48

A native Christian male gave notice, of his intended marriage to a minor

Mohammedan girl aged 15. The girl's father was dead and the mother gave
written consent to then marriage. A caveat was entered by the girl's uncle
against the intended marriage on grounds that his consent as an uncle was
required before the marriage. The court held that the consent of the uncle
though he appears to be her guardian under Mohammedan law, was not
necessary for the marriage and the caveat was dislodged.

Samson V Barin 1960EA 932

The AG entered a caveat against the intended marriage on grounds that a

prospective woman's prior marriage had not been properly dissolved, court
cancelled the: caveat on grounds that the rabbinic court had jurisdiction to
grant a decree of nullity of the previous marriage.

When a caveat has been lodged the registrar forwards the matter to High
Court which reviews the grounds for lodging the caveat and the courts
decisions on the matter final.

Bruno Kiwuwa V Namazzi

Under section 15, if there are no valid grounds for the caveat, the court
orders compensation and costs for the injured party and cancellation of
the caveat.

54
Under section 12, the Act allows the Minister to dispense with the
requirement of notice if it is proved that there is no further lawful:
impediment to the marriage.

Section 21 enjoins the Minister Register and religious leaders not to

celebrate a marriage without a fulfillment of these requirements.

The marriage should be celebrated in a licensed place i.e. office of registrar

or Licensed place of worship. See section 20, 22-26 of the Act.

Celebrating the Marriage

The act requires that a marriage be celebrated by a registrar of marriages or

a recognized minister of the church.

Read
Mahadervan V Mahaderven (1963) ALLER 1108

A V B 1932 12KLR109
R V Mills (1944) 10 CL a Fin 534
Geris V Yakoub (1992) 1 FLR 54
The marriage must be celebrated in open doors. See Section 20 and 26 of
the Carriage Act.

The marriage must also be celebrated within in hours, in church between

8am-6pm while the one in the registrar's office between 10am and 4pm. It
must be witnessed by at least 2 witnesses. See Section 26 of the
Marriage Act.

The Act requires that the Registrar / Church Minister give a certificate of

55
marriage pursuant to s.24 and 27. The parties and witnesses must sign
the certificate and the marriage registrar which will be sent to the
district registrar within 7 days for filling.

The Nature of the Marriage under the Marriage Act

The basic distinguishing feature of civil and church marriages over the
other marriages are that it is monogamous. Under S.26 the registrar
usually brings this to the notice of the parties.
See Sections 36, S.10 (1) and 41 which provides for the offence of
bigamy; also see Sec. 153 of Penal Code Act.
Hyde V Hyde
Chad V Chad 1955 3 ALLER 72
Here the husband married the respondent while .the former marriage was
still subsisting, court declared the 2 nd marriage to be null and void because
the wife of the 1st marriage was still alive, and from the farts it couldn't be
presumed that she was already dead. See: Nachimpson V Nachimpson
1930 P. 217

The marriage is supposed to" be for life unless otherwise dissolved by death
or by decree of court.
In Ayoub v Ayoub 1967 EA 416
Both parties were Mohammedans who were married under a civil ceremony
under the marriage Act. The issue was whether divorce by Talaq is effective
to dissolve marriage contract by Mohammedans under M/A.

Court held that a valid marriage effected under the M/A can only be
dissolved by divorce or decree passed under the Matrimonial cause Act and
the question of Talaq on the wife is wholly immaterial is such causes.

56
Therefore divorce by Talaq was not good as regards such marriage.

Rattansey V Rattansey 1960 EA 81

In this case the parties were married under civil ceremony under the
marriage ordinance and then converted to Islam. The issue 'before court was
whether the change of religion made honestly after marriage with the assent
of both parties can have effects on altering rights incidental to marriage such
as divorce. Court held that the conversion of the parties to Islam made the
parties subject in all respects to the religious laws: It further stated that the
pronouncement of talak effectively dissolved the marriage between, the
appellant and respondent since they had converted to 5.am despite the
previous marriage under the marriage Act.

Question: Distinguish the holding in the case of Ayoub v Ayoub and

Ratannsey v Rattannsey.

3. Domicile
This refers to the habitation in a place with the intention of remaining there
forever or permanently unless certain circumstances should occur to alter
this intention. Domicile was defined in WHICKER V. HOME (1843-60).
ALLER 420 to mean habitation in a place with the intention of remaining
there forever unless some circumstances occur to alter this intention.

Domicile should be distinguished from nationality which acquired by birth or

law of the land. It should also be distinguished from mere residence in a
country without the intention to stay there. Although residence is a
requirement or clement in determining the domicile of a person, there are
three types of domicile; domicile of origin, of choice and dependent domicile.

Understanding domicile is important for the following reasons:

57
 a) In determining the validity of the marriage.
b) In determining mutual rights and obligations of husbands, wives,
c) In determining property rights between a husband and a wife.
d) Determining the legitimacy of children.
e) Determination of contractual capacity.
f) Determining the jurisdiction of the Court either in annulment or divorce
proceedings.
Void and voidable Marriages in Marriage Act

Where parties have gone through a ceremony" for marriage there are
circumstances that may arise and prevent them from acquiring the status of
being husband and wife.

A void marriage is never a marriage neither in fact nor in law. A voidable

marriage, on the other hand, is at its inception a valid subsisting marriage; in
this case the effect of the impediment is to empower one (or occasionally ,
either) of the spouses to take steps to have it turned into a void marriage.
Per Lord Green MR in De Reneville V De Reneville (1948) P 100
"A void marriage is one which will be regarded by every court in any
case in which the existence of the marriage is in issue, as one that has
never taken place and con be so treated by both parties to it
without the necessity of any decree annulling it.
A voidable marriage is one regarded by every court as a valid and
subsisting marriage until a decree annulling. It has been
pronounced by a court of competent jurisdiction."

Essentially a marriage will be void if either party lacks the capacity to

contract or if the marriage is formally defective. On the other hand a
marriage will be voidable.
Where:
• One of the parties to the marriage is impotent

58
 • If there was willful refusal to consummate the marriage.
• If one of the parties suffers from a mental disorder
• Where there is lack of consent.

Another distinction between void and voidable marriages is that a voidable

marriage can be annulled / nullified at the instance of the innocent party but
if another party dies before a decree of nullity is granted, a voidable
marriage must be treated as a valid one for all purposes and for all times. On
the other hand, either party to a void marriage can lawfully contract another
valid marriage without having the first marriage formerly annulled, Read:
Harthan V Harthan 1948 ALLER636

Grounds that make a marriage null and Void

Section 34 of marriage Act, provides a marriage celebrated in Uganda will for

all intents and purposes be null and void on grounds of kindred 7 affinity, or
where either of the party was at the time married to another under
customary law to another person other than the person with whom such
marriage is had. S. 34 (2) A marriage shall be null and void if both parties
knowing and willfully acquiesce in celebrating a marriage:
a) In a place other than registration of marriage office or licensed
place of Worship.
Mahadervan V Mahadervan 1962 3 ALLER 1180

AVB 1932 14KLR 109

b) Celebrate Marriage under false names

Hay v Hay 1939 15 KLR 22
c) Celebrate without having a license from registrar of
marriages or Minister (certificate of notice)
d) Celebrate by a person not being a recognized minister of some
religious denomination/ Registrar of marriage. Mohadervan v

59
 Mahadervan

Cooper v Cooper [1959] 1 W.L.R1021

A Marriage was declared void because it was celebrated without a registrar’s
certificate.
A v B (1932), in this case, a marriage was solemnized by an unlicensed.
However where one of the parties is not aware of the "circumstances
enumerated in here above, then the marriage will be voidable at insistence
of the innocent party.

The Divorce Act also lays down grounds on which a marriage may be
declared a nullity. Section 12 thereof provides that a decree of nullity may be
made under the following circumstances.
a) Where the respondent was permanently impotent at the time of the
marriage.
b) Where the parties are within the prohibited decree of consanguinity or
affinity.
c) Where either "of the parties was married at the time of marriage and
the other marriage was still subsisting.
d) Where one of the parties was married at the time of marriage-and the
other marriage was still legally subsisting.
e) Consent of either party was obtained by force or fraud.

Parajoic V Parajoic 1959 1 ALLER, Where court held that although the
petitioner had understood what was going on. She had successfully
established that she had never consented to the marriage but was forced
through the terror instilled in her by her father's threats and on these
grounds a decree of nullity was granted.

Vafiier v Vaflier 1925 133 LT 830

This case involved an Italian man who did not know the English language.

60
He went through a ceremony of marriage with an English woman in the
marriage Registry office believing it was a ceremony of betrothal. He could
not understand what was going on because he did not know the English
language. The man was shocked to learn that he was married to the
woman and the ease with which the marriage was contracted in England
as opposed to the elaborate procedures in Italy, Court held that
matrimony is the acceptance by mutual consent of the parties of the
marriage with in the knowledge on the nature of the undertaking: and
general knowledge of the consequences of the ties created: that in this
case the petitioner did not know he was contracting a marriage and was
tricked through fraud. A decree of nullity was granted because no consent
was given.

Kelly v Kenny 1948 TLR

S.13 of CMRA-if a party has already contracted a customary marriage, and

later contracted marriage with another under the marriage Act, the
subsequent marriage will be void. See section 13.36 and 10 of the Marriage
Act.

Ground for Voidable marriage

Failure to consummate
marriage

A marriage is said to be consummated as soon as the parties have sexual

intercourse after celebration. A distinction between act of intercourse
and possibility of the act resulting into the-birth must be made very
clear. Once the parties have consummated, the marriage is valid.

In D-E Vs A-G Eccl 279; 298. Where there has been no opportunity to
consummate, for-example where one party is in prison, an indication by one

61
of them that he will hot consummate it at any time in the future has been
held to entitle the other petition forthwith: the latter need not have to wait
for the other to change his mind when the opportunity arises. However, there
will be no willful refusal to consummate the marriage if one spouse insists on
the use of contraceptives.
In Baxter V Baxter 1947 ALLER 808. Where the wife refused to have
intercourse unless a contraceptive sheath was used court held that the use
of contraceptives does not prevent consummation and is no ground for
nullity of the marriage provided that there is penetration.

In Morgans V Morgans 1939 AC 274, court refused to annual the

marriage because the parties were in advanced age and it was clear that
they had married for companionship.

JL Mistake, misrepresentation and fraudulent intent

A mistake will affect the marriage in two cases only. First a mistake as to
the identity of the other contracting party will make the marriage voidable
if this results into- one party failing to marry the individual he /she intended
to marry.
C V C (1942) NZLR 356, A woman married a man in the erroneous belief
that he was a well known boxer called miller. It was held that the marriage
was not invalidated by the mistake because she married the very individual
she meant to marry.

Moses V Moses 1897 P 263

Kelly V Kelly (1932)49 TLR
Mehta V Mehta (1945) 2ALLER 690: mistaken belief that Hindu marriage
ceremony was ceremony of religious conversion.

Fear and Duress

If a party is induced to enter into a marriage which in the absence of

62
compulsion he /she would never have contracted the marriage will be
voidable.
In Szehter vs. Szechter (1970) ALLER 905, the court stated that in order
for duress to vitiate or set aside an otherwise valid marriage, it must be
proved that the will of one of the parties thereto has been overshadowed
by .genuine and reasonably held fear by threats of immediate danger for
which the party is not by him / herself responsible, so that the constraint
destroys the reality of consent of ordinary wedlock.

Unsound mind.
With regards to persons of unsound mind the marriage will be voidable if at
the time the party was unable to understand the nature of the contract.

The test to be applied was formulated by Singleton LJ. in the Estate of Park
(1954) P 112 and stated that, " was the (person)... capable of
understanding the nature of the contract into which he was entering, or was
his mental condition, such that he was incapable of understanding it? To
ascertain the nature of the contract of marriage, a man must-be mentally
capable of appreciating that it involves the responsibilities normally
attaching to marriage. Without that degree of mentality, it cannot be said
that he understands the nature of the contract".

Drunkenness
With respect to drunkenness the marriage is voidable if it was contracted
when the drunkenness had vitiated the petitioner's consent. The burden of
proof lies on the petitioner seeking for nullity.
Sullivan Vs Sullivan (1818)2 Hag Con 238, 246 (Per Sir W: Scott).
NB: In a voidable marriage, it is the innocent party who can petition for
nullity.

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Bars to Grant of Relief of Nullity.
At common law, a party to a voidable marriage might effectively put it out of
his own power to obtain a decree of nullity by his own conduct.

(a) Approbation of Voidable marriages

A void marriage cannot be approbated but avoidable marriage can be. It
occurs in a situation where one party who is fully aware of the defects of the
marriage which would make the marriage voidable nevertheless conducts
him/herself as if the marriage was valid. In this event such an innocent party
will be stopped from revoking the marriage. The innocent party will therefore
have been said to have approbated 5 the marriage by continuing to observe it
and the defect will be cured.

(b) Approbation by Overt Acts

If a party, knowing that he may obtain a decree of nullity, acts in a way
which-is consistent only, with his treating the marriage as valid, he may not
subsequently treat it as voidable.
In K v K (1960) E.A 717, this was a case of approbation by Overt act. It
also dealt with willful refusal to consummate a marriage. The husband in this
case claimed that he could not be satisfied with consummation because of
lack of proper penetration. Court said that since the man had stayed with the
woman and had paid mortgage debts for his wife, he had approbated by
overt act.
W v W 19521 ALLER, where the parties were married in 1941 but
attempts by the wife to consummate the marriage were unsuccessful. In
1945, on the husband's suggestion, the parties adopted a child. In 1946 the
husband left the wife and later presented a petition for nullity of the
marriage on grounds of wife's failure to consummate marriage. On hearing
Baring petition, the issue before court was whether the husband had
disabled himself by seeking relief by his actions amounting to approbation

64
of a marriage which was now seeking to avoid. Court held that by initiating
the adoption proceedings the husband had really approbated the marriage.

iii) Approbation by Delay

I Mere Delay in presenting the petition will not necessarily bar the remedy. P
v K, although if the petitioner continues to live with respondent as his or her
spouse for a considerable length of time, this-may be sufficient to amount to
approbation.

Acceptance of Material Benefits

if the petitioner, knowing that he can obtain a decree of nullity, continues to
accept material benefits to which he would be entitled to only on the
assumption that the carriage is valid, he may then bo estopped "from
asserting that it is voidable, e.g in case a petitioning wife had continued to
accept income from a trust in the wife's favor in a marriage settlement.

Decree inequitable or contrary to public policy

The decree will not be granted if to do so would be inequitable or contrary to
public policy. Thus although a pre-marital agreement between the parties
that they shall not have sexual Intercourse, is contrary to public policy and
therefore not binding on them, it may nevertheless preclude either from
obtaining a decree of nullity if the marriage is in fact never consummated.

Error or mistake about the fortunes of your spouse or the family of the
individual, though produced by tricking representations does not affect the
validity of the marriage. It is said that a man who wishes to act on such
representations should be take time to verify through his own inquiries.

See Wesfietd v Mackay (18 07) 1 Hag. Con. 394: That the law makes no
provision for a blind credulity however it may have been produced. That the
law presumes that the husband uses due caution in a matter in which his

65
happiness and life are so materially involved.

Mohammedan Marriages.
Law applicable:
1. The Marriage and Divorce of Mohammedan? Act Cap 252
2. The Marriage and Divorce of Mohammedans - (Appointment of
Registrars) Order S.l 252_1.
3. The Marriage and Divorce of Mohammedans (Jurisdiction in Matrimonial
Causes) Instrument S.l 252_3
4. Sharia laws or Islamic laws

Primary Requirements
1. Mutual agreement (Ijab-O-Qubul) by the bride and the groom.
2. Two adult and sane witnesses.
3. Mahr (marriage-gift) to be paid by the groom to the bride either
immediately (muajjal) or deferred (muaknkhar), or a combination of
both.

Secondary Requirements
1. Legal guardian (wakeel) representing the bride.
2. Written marriage contract (“Aqd-Nikah) signed by the bride and the
groom and witnesses by two adult and sane witnesses.
3. Qadi (State appointed Muslim judge) or Ma’zoon (a responsible person
officiating the marriage ceremony).
4. Khutba-tun-Nikah to solemnize the marriage.

Marriage (nikah) is a solemn and sacred social contract between bride and
groom. This contract is a strong covenant (mithaqun Ghalithun) as expressed
in Quran 4:21). The marriage contract in Islam is not a sacrament. It is
revocable.

66
Both parties mutually agree and enter into this contract. Both bride and
groom have the liberty to define various terms and conditions of their liking
and make them a part of this contract.

Mahr
The marriage-gift (Mahr) is a divine injunction. The giving of mahr to the
bride by the groom is an essential part of the contract. The Quran under 4:4
states that; “And. give the women (on marriage) their mahr as a (nikah) free gift
Mahr is a token commitment of the husband’s responsibility and may be paid
in cash, property or movable objects to the bride herself. The amount of
mahr is not legally specified, however, moderation according to the existing
social norm is recommended. The mahr may be paid immediately to the
bride at the time of marriage, or deferred to a later date, or a combination of
both. The deferred mahr however, falls due in case of death or divorce. To
this, the Prophet (PBUH) said, “Go and look for something even if it is a ring of
iron.” Narrated by al-Bukhaari (5121) and Muslim (1425).

It is mustahabb to make the mahr simple and easy, because the Prophet
(peace and blessings of Allaah be upon him) said: “The best of dowries is the
simplest.” Narrated by al-Haakim and ai-Bayhaqi and classed as saheeh by
alAlbaani in Saheeh al-Jaami’ (3279). And he (peace and blessings of Allaah
be upon him) said: "The best of marriage is the simplest." Narrated by Ibn
Hibbaan and classed as saheeh by al-Albaani in Saheeh al-Jaami’ (3300).

The following points are worthy of consideration:

a) Mahr must be agreed upon by the marrying partners themselves, not
by parents.
b) Mahr is her right, to which her husband remains indebted.
c) It is a free gift and not her price.

The assembly of nikah is addressed with a marriage sermon (khutba-

67
tunnikah) by the Muslim officiating the marriage. In marriage societies,
customarily, a state appointed Muslim judge (Qadi) officiates the nikah
ceremony and keeps the record of the marriage contract. However any trust
worthy practicing Muslim can conduct the nikah ceremony, as Islam does not
advocate priesthood. The documents of marriage contract/certificate are
filed with the mosque (masjid). (Refer to S.5 of the Act)

According to Shariah, the wife-to-be says, ‘An Kah:tu nafsaka a’lal mah’ril
ma’loom’
I have given away myself in Nikah to you, on the agreed Mahr."
Immediately, the man (bridegroom) says, ‘Qabiltun Nikaha’. 7 have accepted
the Nikah."
With these pronouncements, they become husband and wife.
If the marrying partners are not able to recite the formula in Arabic, one or
two persons or priests are appointed and authorized to officiate. One who
represents the bride would first seek her explicit consent to officiate on her
behalf, and so would the other who acts on behalf of the groom.

Naturally, there would be a slight variation in the pronouncements, because

the persons reciting them are appointees. A person who represents the bride
would initiate by saying, “Ankah’tu muwakkilati muwakkilaka a’lal mah’ril
ma’loom" “I give away in Nikah the woman who has thus appointed and
authorized me, to the man who has authorized you, on an agreed Mahr.”
The groom’s representative would respond, “Qabiltunnikaaha
limuwakkili a’lal mah’ril ma’loom"
“I accept the Nikah on behalf of the one who has appointed me, on the
agreed Mahr."
It is mustahab to recite a brief discourse or Khutba before the Nikah formula is
enunciated. In this Khutba, Allah is praised for His Wisdom in regulating the
lawful process of procreation, and then the traditions from the Prophet (S)
are also recited.

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 O
Time of marriage ceremony
Though basically marriage is allowed at all times, there are some days on
which marriage is not recommended; some of these are based on ahadith
and some on cultural, historical reasons.
Generally, we can categorize these days into three: (a) There are some
ahadith which say that it is makruh (not recommended) to have a marriage
ceremony on the days when the moon is in the constellation of Scorpio (this
is known as al-qamar fit aqrab or qamar dar aqrab), during the last two or three
days of the lunar months, and on Wednesdays, (b) There are certain days of
the Islamic calendar which have become associated with the early events of
the Islamic history; for example, the 10th of Muharram is the day of mourning
for the massacre at Karbala or the day of the Prophet (S)’s death in Safer,
etc. Since such days are commemorated by the Muslims as days of
mourning, it is socially and, to some extent, religiously not recommended to
have a marriage ceremony on such days.

The Shi’ah Ithna Ashari (Twelver Shi’ahs), especially in India and Pakistan,
rarely perform marriacje ceremony between the 1st of Muharram and the 8th
of Rabi al- Awwal as this period includes the mourning days of Muharram
culminating in the martyrdom of Imam Askari (A.S.). The 9th Rabi alAwwal is
celebrated as Eid-e- Zahra.
If there is a need, however, Nikah can be performed at any time.

Permission of the Bride-to-be/Father

The girl’s consent is necessary and has to be taken by her representative,
directly.
In case of a virgin/spinster the father’s or the grandfather’s permission is
also necessary. However if the permission is unreasonably withheld under
some conditions or the girl has no father/paternal grandfather it is not

69
necessary.
However, a woman who is not a virgin does not require any permission in
case of remarriage.

READ: EDGAR V. EDGAR (1980) 3 ALL ER

HYMAN V. HAYMAN (1929) AC 601

DIVORCE
Marriage can be terminated in two ways;
1. Death '
2. Divorce
Divorce or dissolution of marriage is the ending of marriage before the death
of either spouse. It is the termination of a marriage by a competent court of-
law. Divorce brings to an end the legal status of the marriage previously
existing between the parties and thereafter neither of the parties has the
legal rights or duties of a husband and wife.
»
Under section 3 of the Divorce Act of Uganda, where all the parties are
Africans, there are two courts that can handle divorce matters, these are the
magistrates and the high court. Where the parties are Africans, then their
petition will be handled by the Magistrate court and where the parties are
non-Ugandans then the High court has the jurisdiction. This however does
not prevent- Ugandans from filing, a divorce petition in the High court.
Further, the court has jurisdiction to handle a, divorce if either it was
celebrated in Uganda or if one of the parties is' domiciles' in Uganda.

In the case of VAN DROOOGEMBROCH Vs COLLEN & GIBBONS [1992] 4

KALR 18, the husband petitioned for divorce on the grounds that his wife
had committed adultery. The marriage was solemnized in Belgium and
although the petitioner was resident in Uganda he had been living here for-a

70
short time and was not permanently resident in. Uganda. It was held that the
court had no jurisdiction to make a decree unless the petitioner was
domiciled in Uganda. (See sect 18 of Marriage & divorce of Mohammedan
Act).

The grounds for divorce were set out in sect. 4 of the Divorce Act, and these
were as follows;
A husband may apply to the court for the dissolution of his marriage on the
grounds that since the solemnization of the marriage, his wife has been
guilty of adultery.

Under S. 4 of the Divorce Act, a wife may apply to the court for the
dissolution of her marriage on the grounds that since the solemnization of
the marriage, her husband has;
a) Changed the religion from Christianity to another religion
b) Has been guilty of incestuous adultery
c) Bigamy with adultery
d) Marriage with another woman with adultery
e) Rape, sodomy or bestiality ,
f) Adultery coupled with cruelty
g) Adultery coupled with desertion without reasonable excuse for two
years or more.

It should be noted however that the constitutional case of FIDA (U) AND
ANOTHER Vs ATTORNEY GENERAL the court held that this section of the
Divorce Act was unconstitutional since it created some inequality. As such
the section has been declared unconstitutional.

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It should be noted that this case has been interpreted differently by different
schools of thought, for others it means that both the wife and the husband
can now petition on the same grounds. Another option that the courts have
resorted to, is the ground of irretrievable breakdown of marriage. The courts
must be satisfied that the marriage relationship has reached such a state of
disintegration that there is no reasonable prospect of restoration of a normal
marriage relationship between them. The marriage must no longer be
normal. The parties must show that the marriage has broken down
completely that there is no chance for the parties to continue living together
as husband and wife for mutual comfort and support.
Still the grounds that can be relied upon are
1. Adultery
Was defined by Odoki J in VERONICA HABYARIMANA V. PERFECT as
Congenital sexual intercourse during the subsistence of the marriage
between one spouse and a person of the opposite sex not being the others
spouse. It is sexual intercourse between two persons of whom one or both
are married but are not married to each other.”
Since consent is of the essence when relying on adultery as a ground for
divorce, if the married woman is raped, she does not commit adultery.
In other words, adultery is the voluntary sexual intercourse during the
subsistence of the marriage between a spouse and another person not being
their spouse. Proof of adultery requires direct evidence however seldom can
one be caught in die act. As such the courts have & tended to rely on
circumstantial evidence where adultery is conferred from the circumstances
surrounding the parties, that the parties had an opportunity to commit
adultery fox example if they are found locked up in a hotel room, pregnancy,
photographs, sexual explicit SMS messages are all circumstantial evidence.

However, in REDPATH V. REPATH (1950) 1 ALL ER 600 the burden of

proof of lack of consent is on the woman since the question as to whether or
not she consented to it is peculiarly within her knowledge.

72
If the husband is guilty of rape of another person, then he is guilty of
adultery, this position was articulated in the case of LONG V. LONG since it
is not for the alleged adulterer to confess adultery as such, it is normally
deduced from the conduct of the parties and from circumstantial evidence
that tends to establish it e.g. if there is evidence of visiting hotels, brothels,
living rooms, hotels receipts etc.

In the case of Raspin Vs Raspin (1953) 2 All ER 349 a wife found a hotel
bill in her husband’s possession and then she filed for divorce on grounds
that he had committed adultery at that hotel with an unknown woman. At
the hearing the hotel register was produced and a waiter gave evidence that
the man had been seen at the hotel with a woman. Court held that where
there was no evidence of a background of an adulterous association, the
court would not be prepared to make a finding of adultery.

In case of HADLUM V. HADLUM husband a serving solder having last

cohabited with his wife on 28 August 1944 went overseas and remained
there until 7th July 1945. The wife gave birth to a child one month after his
return: he petitioned for divorce on grounds of adultery with unknown man
basing on the abnormal length of pregnancy. Medical evidence was given
that it was not impossible for the husband to be the father of the child and it
held that it would infer that the wife had committed adultery.

Read Kazibwe V Kazibwe,

What Constitutes Adultery

Penetration -This was defined in DENIS V. DENJS (1955) ALL ER 51 - Court

held that to constitute adultery as a ground for divorce, there must be
penetration of the female by the male organ, and although the act of sexual
intercourse need not have been complete yet an attempt to commit
adultery, penetration not having taken place must be distinguished from
adultery and is not itself a sufficient ground for divorce where a man and

73
woman are attached to each other, take off the greater fact of their clothing
that there will in most cases arise a presumption of adultery.

In the instant case, the inference was rebutted because at the time, the two
parties were together on the bed. The man was impotent and was unable to
penetrate the woman i.e adultery can’t be proved unless there was some
penetration.

However, there need not be full penetration to constitute adultery, and for it
to take place, it must be with the person of the opposite sex although it can
take place even if the marriage h is not been consummated.

READ: MACKLENA V. MACKLENA

If the woman gets herself artificially inseminated by another man’s sperm,

she does not thereby commit adultery.

Standard of Proof of Adultant

In HABYARIMANA V. HABYARIMANA (1980) HCB 139

Court held that it is well settled that where there is an allegation of

adultery, it must be proved to the satisfaction of the court. The evidence
must carry a high degree of probability.

In Uganda where adultery is a criminal offence, there is a stronger reason

for demanding a higher standard of proof, than in any other civil
proceedings.

IN GLYDE V. GLYDE (1966) ALLER 524 which was adopted in HABYARIMANA,

the House of Lords held unanimously that the words ‘is satisfied’ don’t
mean satisfied beyond reasonable doubt.

In RUHARA V. RUHARA (1977) HCB 86, the wife petitioned for divorce
on grounds of adultery and cruelty. Her evidence was that in November

74
 1975, she returned home and found the man in bed with her house girl. The
witnesses denied knowledge of an act of adultery.

Court held that the basic rule as established by case law is that in cases of
adultery, the burden of proof lies on tire petitioner, and it’s a heavier
burden than that which lies on the party to an ordinary civil action. Adultery
must be normally proved beyond reasonable doubt although the standard
of proof is not as high as is required in criminal cases.

In proving adultery, the court will normally look for corroboration because
direct evidence apart from that of the petitioner is seldom available.

Adultery may be inferred from the fact that the parties spent the night, or
part of it the same room but court is not obliged to draw such an inference
and if no further evidence. Is available it may dismiss the petition in that
respect.

The two offences pleaded for divorce was dismissed.

2. Cruelty
In the case of Habyarima Vs Habyarimana, the court held that in
determining whether a conduct amounts to cruelty, the general rule is that
regard must be had, to the circumstance of each case, keeping in mind the
physical and mental conditions of the parties, their characters and their
social standing. Read Ruhara V Ruhara

In case of Colarosi Vs Colarosi, (1965) EA 132 the parties were both

Italians living in Uganda. The husband was so quarrelsome and when the
petitioner asked him for money to buy spectacles for their son, he refused,
quarreled, and threatened to smash the woman. She left the matrimonial
home and petitioner, for judicial separation. The court held that the conduct
of the man was one of those occasional outbursts of temper which was part
of a reasonable wear and tear of the marriage having regard to the character

75
and habits of the spouses and of the circumstances of the case and the
conduct of the appellant was not so serious as to amount to cruelty.

In BAKER V. BAKER (1955) 3 ALL ER 193, persistent drunkenness was

held to amount to cruelty. The parties had been married for 11 years. The
husband, a drunkard caused his wife great mental distress by his persistent
drinking despite warning both from her and others that she would not be
able to stand it.

In the last few months of their marriage, he became worse and occasionally
used violence towards her. The wife who was on the verge of a nervous
breakdown left them home and petitioned for divorce.

Court held that the husbands conduct amounted cruelty and the wife was
entitled to a decree.

This case can be distinguished from KASASA V. KASASA (1973) HCB 148
where the Russian court for divorce on grounds of adultery coupled with
cruelty. He pleaded that the husband used to during a lot of came back
home drunk they quarreled resulting into the husband beating her up.

He also used to tell her to take away the Bazungu children. The wife left the
matrimonial home. Court held that the evidence adduced didn’t establish
cruelty as defined by law. The petitioner must prove actual or probable
injury, and the acts complained of as constituting cruelty best amounts to
the normal wear and tear of marriage life.

Other examples of cruelty include:

Constant managing, fault finding, transfer of venereal diseases, coitus

interrupts and the refusal to have children by either spouse.

In FORBES V. FORBES (1955) 2 ALL ER 511. Court held that if a wife

deliberately and contentedly refused to satisfy his husband’s natural and

76
legitimate craving to have children and the deprivation reduces him to
despair and affects his mental health, the wife is guilty of cruelty.

In KROTT V. KROTT (1955) 2 ALL ER 305, Court held that the husband’s
conduct viewed as whole amounted to cruelty and further the refusal by the
husband to allow his wife have children and the practice of coitus
interruptus in disregard whether he injured her health -or not amounted to
quality even though the husband had not been warned by doctor of the
potential results of unnatural practice.

WHITE V. WHITE f!948) 21 ATX ER 151, in spite of the wife s protest the
husband constantly practiced coitus interruptus and there was medical
evidence that the wife uttered in health.

Court held that the husband’s conduct which he knew was resented by and
was undermining the wife’s health constituted cruelty in law and therefore
was entitled to a decree of dissolution in marriage.

In the case of Evans Vs -Evans 19-65 2 ALLER 789, a wife refused to have
sexual Intercourse with her husband without any explanation and for no
reason whatsoever. The court held that lithe conduct of the wife taken as a
whole was unjustifiable and it had an adverse effect on her husband’s health
and consequently amounted to cruelty.

Also in the case of Sheldon V-s Sheldon a young couple was married and
living together and having a normal life. 8 years later he went to work
abroad for a, year. After his return: they continued to live together but the
man refused to have sexual intercourse with the wife for more than 6 years.
As a result she became ill and doctor explained this to the man. The woman
then petitioned for divorce on grounds of cruelty. Court held that the
husband's persistent refusal lo have sexual intercourse with his wife for such

77
long time without any excuse caused grave injury-to his wife’s health and it
amounted to cruelty.

3. Desertion
This has been defined as the withdrawal from the company of each other
without reasonable excuse for a period of two years or more. There is what is
known as actual and constructive desertion.

Elements

Departure or withdrawal from society of the other spouse.

(1) intention to depart for at least two years— Aminus

(2) The deserter must have no reasonable excuse
(3) The person deserted must not have consented to it.

In PATEL V. PATEL (1965)Ep the wife had left the matrimonial home on
the grounds that the husband had refused to rake her to the cinema and
didn’t go to meet tier at the Railway Station when she arrived in Nairobi.

Court dismissed the petition and on appeal, court held that the burden of
proof is on the petitioner to prove that his wife had left the home without his
consent and with no intention of returning. Once this is done, the burden of
proof shifts to the wife to show that there were masons which absolved her.

The matters raised by the wife were not grave and weighty and therefore
were unhappiness was insufficient.

Court further note that a bonafide offer to return made before the filling of
the petition will determine desertion. On the evidence, the wife had failed to
discharge the onus on her of proving an offer.

78
FREDIE V FRED (1944) EA CA 42, wife refused to join her husband where
he had gone. One year later, she accepted him in the home to see the
children. They shared meals, but occupied separate bedrooms.

Evidence was adduced that the wile’s attitude had never changed. However,
she was willing to share the house but without sexual intercourse, although
with a possibility of finishing it.

Court held that the husband’s stay in the wife’s home in the circumstances
didn’t constitute such a tiling together as would operate in law to break the
continuance period of dissertation.

Further, court staled that an offer by the guilty spouse to return condition
that there won’t be resumption of marital intercourse would be unreasonable
and would not be unarmed to desertion the wife .was held to be in desertion.

SYNCE V. SYNGE 1960 the parties were living separately and could have
resumed cohabitation of the husband had complied with the wife’s wish that
they should resume condition on terms that there should be no sexual
intercourse.

It was held that the husband had good cause to live apart -from the wife if
she maintained their condition of life together without recourse.

HUTCHINSON V. HUTCHINSON

The husband who was living apart from the wife agreed to resume
cohabitation on condition that he would not have sexual intercourse. The
wife told him she wasn’t prepared to live with him on that basis and she
applied for judicial separation on grounds of desertion.

79
Court herd that the husband’s insistence on the refusal of sexual intercourse
as a condition for resumption of cohabitation constituted desertion by him.
Accordingly, the wife was entitled to a matrimonial order.

Actual desertion is where one of-the spouses rejects the other against the
consent of the rejected spouse.

Constructive desertion on the other hand is where one spouse behaves in

such a way that he or she drives away, the other party". Constructive
desertion is a creation of case law.

This is a situation where one of the spouses conducts him/her in such a way
as to render it impossible for the other souse to continue living together in
the matrimonial home.

For instance if a wife is so unhygienic that the husband can no longer live
with her, that would be constructive desertion on the part of the wife. In the
case of Long Vs Long a husband assaulted his wife and consistently
abused, her and forced her to have sexual intercourse in revolting
circumstances while claiming that he did not want her to leave him. It was
held that, this was constructive desertion.

Where the spouses consent to the desertion then-the court will not-accept
this-as desertion.

In the case of Hopes Vs Hopes 1948 2 All ER 920, in this case die
husband moved to another room and stopped having sexual intercourse with
his wife. The wife also never did any domestic work and stopped cooking and
washing for him. However the man continued to provide for the family
needs. The question was whether the husband had deserted his wife. Court
held that the husband had not deserted his wife in spite of withdrawing from
the wife’s bed. Since he was still participating in the family activities. Further
that the denial of sexual intercourse seemed acceptable to tire wife since
she had condoned it.

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Also in the case of Broc Vs Broc 1964- 1 WLR 1085 the wife excluded her
husband from the matrimonial home by putting a bolt on the inside of the
door. There was little communication between them but the wife continued
to cook the husbands meals and he paid her a weekly sum for housekeeping.
It was held that there was no desertion and that even if there was separation
of bedrooms, separation of hearts and separation of speaking, but one
household was carried on.

FULL FORT V FULLFORT (1923) P 18 — it was held that desertion is not

necessarily withdrawal from a place but horn a state of things. The test is
whether the spouses are still living together as spouses.

WINNAN V WINNAN (1948) LALL ER 862 the wife had many cats within
the house. She would sit with them and then sleep in the same bed with
them. The husband felt that he could no longer stay in such a house.

Court held that since the lady preferred the company of her cats to her
husband, she had constructively disserted him.

In BARTHELOMEOW [1952] 12 ALL ER 1035 the husband went to war. On

return he found the wife. Children and the house in a dirty state. He asked
the wife when she last had a bath, and she replied; I don’t remember and
she didn’t seem willing to have one.

The husband cleaned up the children and house, but the wife refused to
make any effort. Court held that she was in constructive desertion with her
husband.

In WITHERLY V. WITHERLY. Court held that where the spouses are Wing in
the same matrimonial home, refusal to have-sexual intercourse is
constructive desertion on the part of the spouse who does so.

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Bars to Divorce
Procedure in divorce

Before divorce can he granted, must be established that the marriage exists.
There can be no matrimonial offences unless matrimony can he proved.

Therefore, the first step during proceedings is proof of marriage and this is
normally done by attaching a certificate 6f marriage to the petition.

A certificate of marriage gives the preliminary evidence of marriage. If it

can’t be obtained a certified copy of the entry of the Marriage Registration
book will be evidence of a marriage. Once the petitioner has proved
marriage and the matrimonial office, the court must in addition inquire
whether there is « bar to granting the said divorce. These may either be
absolute or discretionary bars.

Sometimes a court may refuse to grant petition for divorce even if the
grounds for divorce have been proved. Before court can grant orders for
divorce, it must first establish the claims made by the petitioner. It must also
examine the conduct of the petitioner to find out if there has been no
condonation collusion, or connivance.

ABSOLUTE BARS
Before granting the divorce. S.6 of the Divorce Act provides that court shall
inquire into whether the petitioner has been in any manner accessory to or
conniving at the going through of the said form of marriage or the adultery
complained of or has condoned the same and shall also inquire into any
counter charge which may have been made against the petitioner.

Under SI, the petition shall he dismissed if the above conditions are in the
affirmative.

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1. Condonation

Condonation means where a spouse pardons or overlooks the matrimonial

offense of other, Condonation may be by implication of conduct of the
petitioner, the innocent spouse must have knowledge of the material facts of
the offence and go ahead to forgive the other spouse.

In the case of Morley Vs Morley 1961 WLR 211, the court held that
forgiveness is an-essential element of condonation.

In the case of Henderson Vs Henderson, a wife admitted to husband that

she had committed adultery with the Mr. X and promised not to repeat it and
the husband forgave her and resumed sexual intercourse with her. The next
day she withdrew her promise. It was held that there had been condonation
since the man had resumed sexual intercourse.

2. Collusion

This means that the petitioner worked to set up evidence with the intention
of obtaining a divorce. The petitioner must plead and prove that they have
not in any way colluded to obtain the divorce. S.7 makes it mandatory for
Court to dismiss the petition if it’s shown that the petitioner condoned,
connived or colluded with the act presented.

COMBE V. COMBE the wife petitioned for dissolution of marriage arguing

that the respondent had been persistently cruel to her physically and
mentally. The respondent filled a reply and instructed his advocate not to
defend the case on the ground that he didn’t wish his wife to be subjected,
to cross-examination.

On the issue whether or not there was collusion, causing the husband to
alter his attitude with regard to active defence of the case, Court held that
there was no evidence to suggest collusion.

In the case of Churchward Vs Churchward it was held that there are two
kinds of collusion.

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 - Where the parties put forward false facts to form the basis of
grounds for divorce.
- Where the parties put forward facts which are true but have been
corrupted to form the basis of grounds for divorce.

3. Connivances

This means that the petitioner has authorized a matrimonial offence and this
is more in conduct than in words or that the petitioner has made the
circumstances conducive for the respondent to commit the matrimonial
offence. In other words, one of the spouses consenting to a matrimonial
wrong. The petitioner must have consented to the adultery or willfully
provokes it in some way.

WOODBURY Y, WOODEDURY (1948) 2 ALL ER 634 the wife discovered

that die husband had been carrying on an adulterous association with their
child’s maid. She then developed a nervous hysterical state as a result of the
shock of discovery. She wrote to the husband and his mistress a letter which
would in their literal meaning amounted to a license to the husband to
continue his adulterous association which die husband in fact did and in a
petition on the ground of adultery, it was admitted but was contended on,
behalf of the husband that the wife had connived at his adultery by reason of
the letter by the wife on the first discovery of the adultery.

Court held that the wife would not be held guilty of connivance on the letter
as a result of the discovery of adultery but her conduct as a whole; over a
reasonable period of time there was no evidence that the wife willingly
consented to any future adultery.

In GIBBS v GIBBS the husband took money from a man who was ‘sleeping’
with his wife and later petitioned for divorce, and joined the man as a
correspondent. It was hold that he had connived at adultery.

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In the case of Gorst Vs Gorst, a wife couldn't allow free sexual intercourse
with her husband who became adversely affected. The wife gave a general
consent to the husband's adultery except with Miss N. However the husband
began committing adultery with Miss N. Subsequently the wife withdrew her
consent to all the adultery but the husband continued. She discovered this
and she filed a petition for divorce. The issue in court was whether the
petitioner can give consent to adultery excluding one person. It was held
that the petitioner had connived with the adultery of her husband.

Further in the case of Richmond Vs Richmond 1952 1 All ER 838 the two
spouses went on holiday. The husband committed adultery with the wife of
Mrs. B each spouse knowing of the adultery of the other. On return home
the wife gave up her adulterous relationship with Mr. B but the husband left
home and went to leave with Mrs B. The wife petitioned for divorce on
grounds of adultery, desertion and willful neglect. The issue before court was
whether there was connivance on the part of the wife. It was held that the
wife was not entitled to divorce on the grounds of adultery as she had
connived.

When one succeeds in their petition for divorce, the court first grants a
DECREE NISI, and after 6 months if the parties have not reconciled, then
the court will grant a DECREE ABSOLUTE.

In DOUGLAS v DOUGLAS 2 ALLER 748 Court recognized that if you lay a

trap to con suspicion, that’s not connivance. .

READ - POULDEN V. POULDEN & ALEXANDER (1938) 1 ALL ER 508

Connivance can also be committed through an agent. Court held that if you
employ an agent to get evidence of adultery and if such an agent in this
course of his employment achieved are adultery, there is a bar from
obtaining a remedy.

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Court further stated that divorce for adultery is granted because of the
intolerable injury manage which that offence constitutes, but fit has been
deliberately promoted by the petitioner or an agent employed to get
evidence, the petitioner can’t be heard to complain of the injury.

GODFREY V. GODFREY (1964) ALL ER 154

Court said there is no absolute rule of law. Once connivance, always
connivance

Condonation

This refers to Forgiveness knowing that a wrongful act has taken place, but
the petitioner ahead and forgives it. Therefore, if the respondent commits a
matrimonial offence and the petitioner ignores it, he can’t later seek to use
it as a ground for divorce.

S.9 of the Divorce Act specifically provides that adultery shall not be deemed
to be condoned unless the petitioner pleads his or her own matrimonial
offences.

BUTCH V. BUTCH, It was held that there had been no condonation after
the wife’s confession. The husband had not been aware of any facts with
the condonation therefore, condonation after wife’s confession couldn’t be
referred.

HANDBRSON V. HANDERSON (1944) 1 ALL ER 44 the wife admitted to

the husband that she had committed adultery with the co-respondent and
promised nothing to do with the co-respondent in future. She was forgiven
by the husband who had quainter course with her; she promised never to
do it again. She withdrew her promise the following morning and the
husband left the house.

It was contended that in the circumstances, there was no effective

condonation. Court held that adultery had been condoned by the husband.

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It’s only fraudulent in statements of facts and not assurances as to future
conduct which may remove the disabling conduct of condonation. Court
further said that condonation isn’t a contract. It’s the overlooking of wrongs
accompanied by action on the part of the aggrieved spouse which shows
that they are really forgiven.

Read
CHRISTINA HAMLSI V. OMARI (1963}EA 463

MUSINGA V. MUSINGA

Effects of Divorce

The marriage dissolved and the parties are thereafter free to remarry once
the parties succeeded in proving-the grounds for divorce, then the court shall
grant a Decree Nisi. At this point the marriage is dissolved and many aspects
such as custody, maintenance, alimony etc are provided, for. However, this
Decree Nisi lasts for a period of 6 months and the purpose of this period is to
give the parties a chance to reconcile if they wish. If the parties have not
reconciled within those 6 months, then the court shall grant a Decree
Absolute. It should be noted that during this 6 months period, the parties
cannot remarry until a Decree Absolute has been granted.

Orders that a court may make after divorce

1. Order relating to division of property. Where there property, the court

Shall make orders as to the division or this property depending on
several factors such as
who contributed what, what property belonged to who, which spouse
is having

custody of the children etc.

2. Maintenance Order, the court will make orders as to what

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 maintenance towards the children will be made and normally the court
shall provide for each spouse contributing towards maintenance
children.
3. Order for alimony, this is the maintenance of the spouse, usually the
court shall make an order regarding alimony of one spouse, and
usually the court shall make an order regarding alimony of one spouse
to another. Originally it was a man who had to pay alimony, however
the position has changed now and whichever spouse has money, will
pay alimony to the other. In USA Britney Spears is paying alimony to
her husband.
4. Custody order for the children, this will include physical custody and
visitation rights.
5. Costs
6. No consumption

Effects of divorce

The parties are free to remarry

Divorce under customary marriage

A customary marriage is terminated according to the customs of a tribe

or community but such customs must be fair and just

In John Tom Kintu Muwanga v Myllious Gafabusa Kintu (supra) it

was stated by Justice SB Bossa that, when parties make a choice and
opt to be governed by customary law in their marriage, they will be
governed by the same rules. The rules of course subject to those rights
guaranteed to them in the Constitution.

Divorce under Islamic or Mohammedan marriages

There are two forms of divorce under Islamic Law

1. Extra Judicial Divorces

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 2. Judicial Divorces.

Extra Judicial Divorce: There has been misconception about this form
of divorce with some people feeling that it is very easy to divorce extra
judicially under Islamic Law. However under Islamic Law divorce is
discouraged and will only be allowed if the conditions are grave and
weighty and even so divorce will be the last resort and reconciliation
between the parties is encouraged. This reconciliation is provided for
and where the conflict originates fr9m the wife, her husband has the
right to judge her, consider the wrong she has committed and make a
decision. The husband is also supposed to guide her and show, her that
what she has done is wrong, and that she should not repeat it. If she
repeats her actions, he may then resort to disciplinary action which is in
3 phases,

1. He may start by kind exhortations or reprimands where he denies her a

few necessities;
2. He may then withdraw from the matrimonial bed however this should
be of a temporary nature; and if this fails
3. He may undertake some symbolic beating but this should not be
severe. At this stage he has the right to abstain from sex until the wife
reforms.

When in conflict from the husband, the wife has to try and make peace with
the husband and try to settle their differences. If all these fail two arbitrators
from both sides are appointed to review the situation and to try and settle
the dispute. It is only after this that the parties can then resort to divorce if
the arbitration fails.

There are a number of extra judicial divorces that the parties can undertake.

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Under Islamic Law Divorce is of primarily three types. Talaq, which
comprises of modes of divorce at the instance of husband. Khula, which is
divorce at the instance of the wife and third is Mubarat, which is mutual
consent divorce.

Talaq itself is of three types. These are Talaq AJjsan and Talaq
Hasan, both of which are approved by the Quran and Hadith and the
third type which is Talaq-i-Bidat, which is neither recognized bv the
Quran nor the Hadith.

Mulla’s Mohammedan Law Section 311 explains the three types of talaq as
follows;

a) Talaq-i-Ahsan
Ahsan is a single pronouncement of talaq by the husband followed by
a period of abstinence for the iddat period. Iddat period is equivalent
to 90 days- i.e. three menstrual courses in case the wife is
menstruating or three lunar months in case she is not. If there is
resumption of cohabitation or intimacy within that period, the divorce
is revoked. If there is no resumption, then the divorce becomes final on
expiry of iddat/90 days.

b) Talaq-i-Hasan
Hasan arises if, after the first pronouncement as above, there is
resumption-of cohabitation within that month or a revocation. The first
talaq is thereby revoked. Yet, after such intimacy, ii during the second
month there has been no intimacy the husband pronounces another
’’talaq . For the divorce to attain finality this is not sufficient-a further
month has to pass and a third talaq has to be pronounced whether
during or after the iddat. If after the third talaq is not pronounced- or
there is resumption of cohabitation before the third talaq is
pronounced, whether during or after iddat/ three months, the divorce
does not come into force. However, if the third talaq is pronounced the

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divorce is irrevocable. In sum Ahsan is one pronouncement of talaq
followed by abstinence thereafter during iddat, whereas Hasan is three
pronouncement one-each in three successive months interspersed
with abstinence.

c) Talaq-i-bidaat
Talaq bid’af bidaat- (innovated or not approved is instantaneous
divorce). This form is not permitted by either the Quran the Hadith and is
in fact contrary to quranic prescriptions. This practice can be traced to 2nd
Century after the advent of Islam and is sought to be recognized only by few
Sunni schools- the Hanafis most prominently. Even these schools that seek
to recognize it, claim it as a sinful form of divorce and seek to justify it on the
ground that “it is bad in rheology but good in law”. Talaq-i-bidat is also of
two kinds- Uttered in one definitive talaq pronouncement such as “I talaq
you irrevocably” or three simultaneous pronouncements i.e. “talaq,
ndaq, talaq" at one go, the divorce is said to be effected instantaneously
and irrevocably. While both die types of talaq-i-bidat are colloquially
referred to as triple talaq, the same is a misnomer because of two reasons.
First, because Talaq-i-bidat can be effected by either three
pronouncements or one pronouncement, as explained above. Second,
because even Talaq Hasan has three pronouncements, the difference being
that in case of Talaq Hasan these three pronouncements are interspersed
in three 30 days periods, over a total of 90 days. Thus, the correct
terminology for Talaq-i-bidat is instantaneous talaq and not triple talaq,
which is a misnomer.

There are certain conditions to be fulfilled in order to make talaq complete

and valid;

a) The husband must be of age;

b) He must be seen conscious alert and should not be angry;
c) He should not be intoxicated;
d) He should be free from external pressures;
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 e) His intention to terminate the marriage must be clear.

On the part of the wife

a) She should be of age;
b) Must be in a healthy state of mind;
c) Must be in a state of purity by which is meant that she should
not have had any sexual relations with her husband and should not
be menstruating.

The Marriage and Divorce of Mohammedans Act does not provide the
grounds of divorce but the principles of Islamic law and some scholars have
given some of die following grounds;

a) Desertion by the husband for a period of 5 years;

b) Failure of the husband to provide maintenance for a period of
two years;
c) Imprisonment of the husband for a period of 7 years.
d) Failure of either spouse to perform marital obligations.
e) Where the husband is either insane, cruel, impotent, suffering
from leprosy or a venereal disease or where he is captured by war
enemies.
f) In cases of extreme or severe poverty.

Under Judicial divorce, when the divorce has been pronounced by court, both
spouses are required to register under the Marriage and Divorce of
Mohammedans Act and this should be done within one month of the
pronouncement of the divorce. However failure to register will not invalidate
a valid divorce or vice versa.

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