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223-053011-27142
Marriage refers to the voluntary union for life of one man and one woman to the
exclusion of all others according to Lord Penzance in Hyde v Hyde (1866) LR 1 PD
130, a case concerning the validity of a Mormon marriage.
It is also defined in the case of Alai Vs. Uganda [1967] E.A 596 Sir Udo Udoma held
that “marriage is a ceremony by which a man and woman become husband and wife
thereby creating the conditions of belonging to a particular class of persons to whom
the law assigns certain equal capacity as qualified".
Marriage is catergorised under two marriage froms monogamous and polygamous

marriages which constitute of civil,customary, islamic and hindu marriages as
recognised in Uganda.
According to Section 1 (b) of a Customary Marriage Registration Act (cap 248)

defines a customary marriage as a marriage celebrated according to the rights of an
African community and one of parties is a member to that community.
The statement the onus of proving customary law marriage is generally on the party
who claims it and the standard of proof is the one usually for a civil action namely on
the balance of probabilities is true according to the laws of Uganda because under
Ugandan law, the burden of providing the existence of a customary marriage falls on
the party who asserts that such a marriage exists. This principle is tied with the
general rules of evidence, where the party making an assertion must prove it.
The evidence Act Cap of Uganda provides in section 101 that, whoever desires any
court to give judgment as to any legal right or liability dependent on the existence of
facts which he or she asserts , must prove that those facts exists.
In the context customary marriage, this means the party claiming the existence of the
marriage must bring evidence to establish it
The standard of proof in civil matters, including customary marriages is on the

balance of probabilities and this is lower than the standard in criminal cases(beyond a
reasonable doubt) which requires that the evidence presented claiming the marriage
be more convincing than the opposing evidence
The standard of proof in civil cases is also articulated in case law where courts have
emphasized that in civil action, the plaintiff must prove their case on the balance of
probability. This means that the court must be satisfied that it is more likely than not
that the customary marriage exists.
The requiments for proving customary marriage in Uganda are the claimant
providing evidence that the customary rights are recognized by the community.
While these rights vary between different ethnic communities, key elements often
include:
Consent of the parties to the marriage
Bride price(dowery payment)which is a common feature in many Ugandan customs
A ceremony in accordance to the customary norms of the community
Courts in Uganda have often emphasized the need to prove these essential elements to
establish a valid customary marriage like in the case of
Charles Muhumuza v Jennifer Kagoyire(civil appeal no.24 of 2007) where the
court highlighted that the claimant of a customary marriage must present sufficient
evidence to show that all the key requiments for a customary marriage under the
relevant tradition were fulfilled and also in Uganda v Kato and Others, the court
ultimately ruled that the party asserting the existence of the customary marriage had
failed to meet the required standard of proof. The evidence presented was insufficient
to show that the essential customs and practices of the relevant ethnic group had been
followed. As a result, the court did not recognize the alleged customary marriage as
valid.
Case law supporting the above statement that Uganda case law has consistently
supported the principle that the party claiming a customary marriage must prove it on
a balance of probability for example in the case of
Maggie Kazora V Rukikair, the court of appeal reiterated that customary marriage
must be proved by clay evidence that the requisite customary practices were
followedin the case of Achen Stella V Achaye Daniel(civil suit no.103 of 2014), the
court held that in absence of sufficient evidence to prove a customary marriage, the
court can not conclude that a valid customary marriage exists. This reinforces the idea
that the onus lies on the party making the claim.
In conclusion under customary law marriage in Uganda the onuns of proving

customary marriage is on the party who claims it as examined above.

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223-053011-27142

Marriage is catergorised under two marriage froms monogamous and polygamous

According to Section 1 (b) of a Customary Marriage Registration Act (cap 248)

The standard of proof in civil matters, including customary marriages is on the

In conclusion under customary law marriage in Uganda the onuns of proving

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