QUESTION
Uganda government passed a marriage and divorce bill, with concrete examples assess its implementation
MARRIAGE BILL
The family domain is among others, a space in which women’s rights are violated. Women assume various roles and responsibilities as wives, mothers and daughters and in these contexts, hold multiple identities as single women, adolescent, pregnant and young mothers, women in polygamous or monogamous marriages, elderly women and widows. Unequal power relations between men and women are accentuated at the family level and affect the extent to which women are empowered to make choices and exercise agency. Areas of concern include the patriarchal structure of society, which also entails the perception that women are dependents of male household members; the exercise of male authority in the household inheritance practices that favour males over females; and discriminatory marital property arrangements.
Data from countries such as Colombia, Jordan and Peru demonstrates that women tend to be the largest cohort of claimants in family-related court cases. Marriage, family and property rights cut across a range of economic, social, cultural, political and civil domains that can considerably impact upon women’s ability to access justice. These rights include equality of rights in marriage, divorce, parental authority and responsibilities; women’s ability to acquire, change and retain their nationality in marriage, or transfer it to their spouses and children; equality before the law; equal rights to choose a domicile or residence; recognition of women’s unpaid care work; and legal capacity to conclude contracts and to own and administer property.1 Furthermore, marriage, family and property rights often overlap with other rights, such as the right of protection from various forms of violence (e.g., early marriage, widow inheritance and domestic violence), food security and girls’ education.
Different types of marriage
Statutory/civil marriages: Statutory/civil marriages are contracted under State laws, which set out the conditions that must be met for a marriage to be valid. These conditions may include the minimum age at which prospective parties can marry; different modalities for formalizing the marriage; marital property regimes; maintenance, upbringing of children and parental obligations; divorce; and property distribution and child custody arrangements upon divorce. Such marriages vary from one jurisdiction to another depending on the cultural, traditional, religious and historical experiences of a country, and can imply State recognition of a diversity of marriages including monogamy, polygamy and same-sex marriages.
Traditional and religious marriages: Traditional and religious marriages are contracted in accordance with specific customary practices or religious rites, respectively, which define the conditions and processes of the marriage. In many parts of the world, traditional as well as certain religious marriages are potentially polygamous in nature. State recognition and regulation of such marriages may also vary by country, including in monogamous and polygamous contexts.
However though traditional marriages recognize polygamy, according to; CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations (CEDAW GR 21) as a contravention of a woman’s right to equality with men, in view of the serious emotional and financial consequences for a woman and her dependents. Additionally, CEDAW General Recommendation No. 27 on Older Women and Protection of their Human Rights (CEDAW GR 27) provides that: “Older wives are often neglected in polygamous marriages once they are no longer considered to be reproductively or economically active.
Common law unions: this law unions refer to arrangements in which the parties involved cohabit over a period of time without formalizing their relationship through one or more of the steps described above. Such unions tend to be officially recognized in most parts of Europe and the Americas and less in Africa and Asia. CEDAW GR 21 and CEDAW GR 29 point out that such unions are protected under the ambit of the marriage and family life provisions of Article 16 of the Convention. This is because, as stated in CEDAW GR 29 “women may be exposed to economic risks when a cohabiting relationship ends, including when they have contributed to maintaining a household and to building other assets.”
Marital property regimes
Separation of property: All assets and income acquired by the spouses both before they marry and during the marriage remain the separate property of the acquiring spouse. At the time of divorce or the death of one of the spouses, each spouse retains ownership of all assets and income brought to the marriage or acquired during marriage by that person and any value that has accrued to that property.
Partial community of property: Assets acquired before marriage are regarded as the separate property of the acquiring spouse, and assets and income acquired after marriage, with a few exceptions specified by law, are regarded as joint property of the couple.
Full community of property: All assets and income whether brought into the marriage and acquired during the marriage, with a few exceptions specified by law, become the joint property of the couple. If the marriage is dissolved, all joint property is divided equally between the spouses.
Deferred full or partial community of property: The rules of full or partial community of property apply at the time the marriage is dissolved; until then, separation of property applies.
Analysis of marriage and divorce bill
On 16th October 2009, The Marriage and Divorce Bill, 2009 (the MDB hereinafter) was gazetted. Its object is among others, to “reform and consolidate the law relating to marriage, separation and divorce.”1 This is an important objective particularly considering the fact that the marriage law on the books right now is the Marriage Act of 1904, similar to the Divorce Act. The law regarding marriage and divorce in Uganda is split among 6 Acts namely, The Marriage Act, The Divorce Act, The Registration of Customary Marriages Act, The Marriage of Mohamedans Act and the Marriage of Hindus Act. As such, the consolidation and reform of Uganda’s laws on marriage and divorce is long overdue. Generally, the bill is a comprehensive one as it is, based on consultations with all relevant stakeholders. The bill was drafted based on studies and recommendations by the Uganda Law Reform Commission, FIDA-Uganda, and Ministry of Women in Development, Culture and Youth.2 It addresses several issues that have been points of contention among the Ugandan public, particularly matrimonial property, polygamy, bride wealth and same sex marriage among others. These issues will be the focus of this analysis.
In 2011 debate on the bill came to a standstill as it was heavily opposed by Muslim and Christian Religious leaders and believers. The most contentious issue for the Muslims was that the bill attempted to outlaw polygamy, which is a central part of the Muslim faith. Christians opposed the law allegedly because it would promote promiscuity and “cheapen the institution of marriage.” This issue was resolved by a decision that Muslim marriage would be provided for under a separate law.
At the last tabling of the bill before Parliament in February 2013, it was withdrawn by the
Government in order to give Members of Parliament more time to consult their constituents. The Speaker of Parliament, Rebecca Kadaga, recently reminded Members of Parliament that it is their duty to consider that bill. She stated that she had notified the Leader of Government Business and the Leader of Opposition to meet and come up with a joint report on how to proceed with the Bill considering the views that came from the constituencies. However, to date, the Parliament of Uganda is yet to reconsider the bill.
Yasin Mugerwa argued in an opinion piece for the Sunday Monitor that:
To have the disputed Bill accepted by all Ugandans, the architects of this law should calm down before it’s “reburial”. We need to drop the rubicund ideas on cohabitation, bride price, discourage divorce and embolden the institution of marriage. I suggest we consult Ugandans again, delete the word divorce from the original draft; stop demonizing critical views and lobby for a common ground on property sharing. We can guarantee women rights and protect children from abusive marriages without necessarily vulgarizing the institution of marriage.
In this analysis, I discuss the most contentious issues he raises above which are; cohabitation, bride price, property sharing and divorce in analyzing the marriage and divorce bill.
Polygamy
The Marriage and Divorce Bill (MDB) recognizes polygamous marriages as lawful in Uganda. Clause 3 (Interpretation) of the MDB defines a ‘polygamous marriage’ as “a marriage in which the man is married to more than one wife,” and it goes on to define a potentially polygamous marriage as a marriage between a man and a woman in which the man has the capacity to contract another marriage during the subsistence of the first marriage, but has not yet done so. From the above definitions it is clear that the polygamous marriage envisioned by the drafters of the MDB is one in which one man is married to, or is allowed to legally marry more than one woman.
A feminist argument grounded on the principle of equality of men and women arises against this provision. Article 21 of the Constitution of Uganda provides that all people are equal before the law regardless of sex. Article 31 of the Constitution provides that men and women of the age of eighteen years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.
At the international level, Article 23(4) of the International Covenant on Civil and Political
Rights (ICCPR) provides that States Parties shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.
Similarly, the Maputo Protocol under Article 6 calls upon State Parties to ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. It also calls upon State Parties to enact appropriate national legislative measures to guarantee that monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family are promoted and protected.
Furthermore, Article 16(1) of the Universal Declaration of Human Rights (UDHR) provides that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. These are the very issues emphasized in Article 31(1) of the constitution of uganda.
Bride Price
The MDB recognizes the institution of ‘bride wealth’ as legal although it provides that it shall not be ‘an essential requirement for any marriage under this act’ and that ‘it is an offence to demand for the return of a marriage gift’ (Clause 14). A marriage gift is defined in Clause 3 of the bill as a gift by whatever name known, in cash or in kind given by either party to a marriage in respect of that marriage and includes bride price and bride wealth.
Traditionally, bride price was supposed to consist of gifts given to the parents of a bride in appreciation of their role in the bride’s upbringing. Bride wealth has also been defended as an institution that serves to protect the wife against abuse from her husband, stabilise the marriage and join the two families together. In some cases, bride price was supposed to act as security for the wife in case of divorce.8 However, today the purpose of bride wealth has been distorted.
According to Tamale;
Whatever virtues the institution of bride wealth carried in the past, they have been lost in the present. Rather than cementing the relationship between the families concerned, and providing stability to the marriage, the customary payment of bride wealth now gives the husband proprietary rights over his wife, allowing him to treat her more or less like a chattel. This is especially so because it equates a woman’s status in marriage with the amount of bride wealth exchanged and not with her skills and abilities
This distortion in practice is clearly degrading and takes away the dignity of women as it leads to women being considered as mere property to be bought and sold to the highest bidder at will and also to women being looked at as less than men in a marriage. In addition to this, there are increasing instances these days of cases where the woman has to contribute to the bride price because she wants to marry a man who can’t afford the exorbitant bride wealth that some parents ask for. This leads to young couples starting their families while in debt.
The UN Committee on Elimination of Discrimination against Women which received Uganda’s last periodic report in August 2010 expressed concern that such customs and practices (polygamy and bride wealth) perpetuate discrimination against women and girls, that they are reflected in the disadvantageous and unequal status in many areas, including in education, public life, decision-making, marriage and family relations, and the persistence of violence against women and harmful practices, including polygamy, early marriages and the bride price, and that, thus far, the State party (Uganda) has not taken effective and comprehensive action to modify or eliminate stereotypes and negative traditional values and practices.10 The Committee urged Uganda to address harmful practices, such as polygamy, early marriages and the bride price, more vigorously.
However, in the case of Mifumi (U) Limited v AG the argument by women activists that bride price was unconstitutional was rejected.12 The Constitutional Court considered the practice of payment of bride price as a condition precedent to the customary marriage separately from the practice of claiming a refund on dissolution of the marriage and held that it is the practice of demanding for a refund that is unconstitutional and that it “demeans and undermines the dignity of a woman. The recognition of bride price in the bill reflects the position adopted by the Constitutional Court in the Mifumi case and goes a long way towards ensuring the protection of women in marriage and at its dissolution. However, it is my considered opinion that the well being of all women in marriage and Uganda’s compliance with her international human rights obligations, would be best ensured by completely removing the requirement for bride wealth as a condition precedent to a customary marriage, and leave it at the will of the parties as a gesture of appreciation.
On the whole, the institution of bride wealth is very problematic; despite the fact that the
Constitutional Court which is charged with interpreting the Constitution of Uganda found it to be constitutional and the Laws of Uganda must be made in accordance with the Constitution. It’s important to note that even earlier versions of the bill before the Court pronounced itself on Bride wealth, recognized it as legal. Advocates for this law have had to make compromises to get it where it is now; bride wealth and polygamy were the greatest compromises.
Matrimonial Property
In 2013, matrimonial property was one of the most contentious issues of debate during the last tabling of the Marriage and Divorce Bill in Parliament. This is also one of the most comprehensive Clauses of the bill. The Interpretation section says that matrimonial property shall be given the meaning in Clause 116 of the bill and Clause 116 refers us to Clause 115 which gives a list of the things that shall be included in matrimonial property.
Clause 115(c) of the bill states that matrimonial property includes any other property either immovable or movable acquired before or during the subsistence of a marriage deemed to be matrimonial property by express agreement. Over the years, the courts of Uganda have made pronouncements on what does and doesn’t constitute matrimonial property, particularly at the time of dissolution of marriage. In the case of Hope Bahimbisomwe v Rwabinumi, the Supreme Court of Uganda held that matrimonial property is that property acquired jointly by the parties in marriage and any property that the couple decides to treat as matrimonial property by agreement.14 The courts’ pronouncements have been adopted and applied accordingly in the distribution of property at the dissolution of a marriage. However, none of this is reflected in any written law. In fact before taking leave of the appeal in Bahimbisomwe v Rwabinumi,
Kisakye JSC had this to say:
I would strongly urge Parliament to enact a law that clearly defines what constitutes marital/matrimonial property as opposed to individually held property of married persons and that spells out the principles that courts should follow in adjudicating disputes involving division of property upon the dissolution of marriage. Such law should of course be based on the principle of equal treatment of the husband and wife, as is prescribed by our Constitution.
Prenuptial Agreements
A new addition to the Marriage and Divorce regime in Uganda appears in Clause 117 of the MDB which provides for agreements prior to marriage or cohabitation that partners may enter into, regarding the acquisition and sharing of property in their marriage/ cohabitation. This clause effectively neutralizes the arguments that have been raised against the bill’s provisions on matrimonial property. Some MPs argued that the scope of matrimonial property included in the bill was too high and would amount to unjust enrichment of one spouse in case of divorce, at the expense of a spouse who came into the marriage financially stable and owning their own property. Individuals contemplating marriage would be free to make agreements as to their property under this clause and such contracts would be valid and enforceable before courts of law in Uganda. This would limit cases of “unjust enrichment” as the property would be divided in accordance with their prenuptial agreement in the event of divorce.
Same Sex Marriage
Same sex marriage is an issue that many jurisdictions are contending with in different ways. The Republic of Ireland decided the issue of marriage equality through a referendum in which a majority of Irish people voted for marriage equality.16 The Supreme Court of the United States recently pronounced bans on gay marriage in the USA to be unconstitutional thereby recognizing the rights of same sex couples to marriage. In Uganda’s case, the 2005 Constitutional
Amendment Act amended the Constitution by adding Art.31 (2 a) which prohibits marriage between persons of the same sex. In the same vein, S. 18 and 40 of the Marriage and Divorce Bill prohibit same sex Civil and Christian marriages respectively. It is unclear whether the absence of a prohibition of same sex marriage in the sections of the law covering Bahai, Hindu and Customary marriages was deliberate or an error of omission on the part of the draftsperson.
Divorce
The provisions of the Divorce Act, particularly regarding the grounds for divorce, are obsolete. The Constitutional Court has found unconstitutional and struck down several sections of the Act on equality grounds. These changes have, until now, never been reflected in the law via amendment. The practice now is that in divorce cases, courts only require the party petitioning for divorce to prove one ground i.e either adultery, cruelty, or any other of the grounds listed in the divorce act to secure a divorce. Clause 144 of the MDB provides for irretrievable break down of marriage as the only ground upon which a party may petition for the dissolution of that marriage. It does away with the burden on the party petitioning for divorce to prove any wrong doing on the part of the other. Parties only need to present sufficient evidence to convince the court that a marriage has irretrievably broken down. This clause has faced some resistance with religious leaders claiming that it will weaken the institution of marriage.
Time of Divorce
Clause 140 of the bill bars any divorce proceedings before the expiry of 2 years from the date of marriage, and yet Clause 145 asserts irretrievable breakdown of marriage as the sole ground for divorce. What happens if a marriage irretrievably breaks down before 2 years have elapsed? S.140 therefore defeats the purpose of S.145 and may leave weak spouses at risk. In case of domestic violence, a vulnerable partner may lose his or her life while waiting for the required two years to elapse, for example in the Sharma Kooky case where the wife was battered to death.
No one should be forced to stay in a marriage that has gone sour for two extra years by the law. Furthermore, the reality of the HIV/AIDS pandemic in Uganda should not be ignored. HIV/AIDS will not wait for two years to infect someone in case of a habitually unfaithful spouse. The aggrieved party should therefore be able to leave the marriage as soon as a problem is detected.
Article 31(3) of the Constitution provides that marriage shall be entered into with the free consent of the man and woman intending to marry.
Conclusion
When the law was last tabled before parliament in 2012, the Government withdrew it from the floor to give Members of Parliament more time to consult with their constituents on the law, argue that as a potential piece of legislation, the MDB reflects the will and aspirations of the people of Uganda. It is after all the product of the efforts of legislators and activists and as the memorandum states is based on studies and recommendations by FIDA- Uganda and the Uganda Law Reform Commission, among others and consultations by MPs with their constituents.
However, there is still a lot to be done in terms of ensuring that it complies with Uganda’s international human rights obligations in the face of stiff resistance from cultural and religious leaders. After having languished in parliament for decades, this bill is one of the most debated proposed laws in Uganda’s history. The Constitution of the Republic of Uganda guarantees the equality of men and women and any law providing for the regulation of relationships between men and women should reflect this. The MDB reflects this equality in certain aspects like property sharing but fails miserably when it comes to polygamy and bride wealth.
