FAMILY LEARNING OUTCOMES

Firm X Partners
1. Mpaata Jerome Owagaage
2. Julianne Mwebaze
3. Diane Niyogusabwa
4. Aine Raymond
5. Gerald Ndobya
6. Muhanuuzi Dora
7. Mulindwa Fredrick
8. Daphne Musoki
9. Awino Mercy
10. Kule Roland
 1. Difference between void and voidable marriages.
Definition: these are circumstances where marriage may be considered invalid
a. Voidable – remains valid until formally annulled by an order of court. Decree of annulment can
be sought by one or both parties.

b. Void – is void ab initio. A decree of nullity can be sought by any person with a legitimate interest
and can be pronounced at any time even after the parties have died.

c. De Reneville v De Reneville [1948] 1 ALLER 56. [an English woman married a French man.
Wife brought suit to dissolve the marriage on the ground of non-consummation owing to the
incapacity or willful refusal by the husband. Held that under English law, willful refusal to

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consummate rendered the marriage voidable and not void. A void marriage is one that will be
regarded by every court in any case in which the existence of the marriage is in issue as never
having taken place and can be so treated by both parties to it without the necessity of any decree
annulling it. A voidable marriage is one that will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced.]
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d. Roberts v Roberts (Re Roberts deceased) [deceased made a will under which the dff was a
beneficiary [before marriage]. Later, the deceased and the pff went through a ceremony of marriage.
After the death of the deceased, the pff sought grant of letters of administration to his estate on the
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grounds that he died intestate because the earlier will had been revoked by the fact of marriage by
virtue of s189 of the Wills Act of 1837. The dff who alleged that the deceased had been suffering
from senile dementia and other mental illnesses at the time of the marriage contested the grant of
LoA on the ground that the marriage was void because the deceased had lacked the necessary
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mental capacity to consent to it and therefore there had been no valid marriage capable of revoking
the earlier will. Held that the provision being cited only made the marriage voidable and not void.
Walton J: where marriage is voidable, the persons who are concerned with the grounds which make
it voidable are the parties to the marriage and no one else. If a marriage is declared void, it is
declared void on social and public policy grounds which must, of necessity, take priority over
anything that the parties themselves wish but where a marriage is voidable, the matter is left
entirely in the hands of the parties and the parties may not take advantage of their undoubted right
to declare the marriage void.

Legal Framework on void marriages [What may render a marriage void ab initio?]
a. Constitution

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i. Article 31(1) – a man and a woman are entitled to marry if 18 years [implication is that a marriage
where one of the parties is under age is void.]
1. Have in consideration Section 11(a) and (b) of The Customary Marriage (Registration) Act Cap
248 that sets the marital age as 16 and 18 for girls and boys respectively [does it pass the
Constitutional test?]

ii. Article 31(2a) – Marriage between persons of the same sex is prohibited [See comment in (i)]
1. Corbett v Corbett, 1970 2 All E.R. 33 [The plaintiff, Mr Corbett, sought to end his marriage to
Mrs Corbett at a time when mutual consent was no grounds to annul a marriage. In order to succeed
in annulment, thereby avoiding inheritance issues, Mr Corbett challenged the legality of the
marriage on the basis that Mrs Corbett had been born a man. Through a number of tests, Mrs

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Corbett was found to have never been female and therefore could never have entered a marriage
with Mr Corbett, in turn voiding their marriage. The Court ruled that the marriage was void ab
initio.]

iii. Article 31(3) – entered into with the free consent of parties
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1. Uganda v Yiga Hamidu, Criminal Session 5 of 2002 [This case underscores not only the
importance of consent in marital relations but in contracting marriage itself. The Court states: It
clearly appears that the existence of a valid marriage between an accused and complainant or an
honest belief that a valid marriage between the two does/can exist in Uganda, no longer constitute a
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good defence against a charge of rape after the promulgation of the Constitution of the Republic of
Uganda, 1995. Article 31 of the Constitution provides, in its clauses (1) and (3) explicitly requires
free consent to marriage.
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iv. Article 31(1) – marriageable age is 18 years

1. Pugh v Pugh [1951] 2 All ER 680, [a man of 16 yrs married a 15 yr old girl. Held that the
marriage was void.]
2. Uganda v Yiga Hamidu Criminal Session 5 of 2002 [litigated art 31(1) on age and found that
victim was over 18; emphasised the need for age requirement to be observed]
b. S34 of The Marriage Act Cap 251 provides for situations where a marriage will be declared null
and void [Cross reference with s11 of The Customary Marriage (Registration) Act
i. Kindred or affinity [within prohibited degrees]
1. S149 of the PCA provides for the offence of incest and articulates the prohibited degrees of
marriage.
2. Bruno Kiwuwa v Ivan Serunkuuma and Namazzi High Court Civil Suit No, 52 of 2006

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ii. One of the parties already in a subsisting marriage [see also s153 PCA on the offence of bigamy]
1. K v K [petitioner went through a ceremony of marriage with the respondent in 1970 at a district
commissioner’s offence. At the time of contracting that marriage, the respondent was married to a
one Grace Waiyaki in accordance with Kikuyu customary law. The marriage had never been
dissolved or annulled hence was still subsisting. Held that only monogamous marriages could be
created by a ceremony under the Marriage Act and as the husband was already married, the initial
ceremony was valid and conferred no married status on the second ceremony. The respondent had
thus committed adultery]
iii. Celebrated in a place not licensed (and without special licence from minister)
iv. Under false name/s
1. Chipchase v Chipchase [1939] 3 All ER 895, [resp was married in 1915. Shortly afterwards, her

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husband deserted her and she had not seen or heard from him since 1916. In 1928, she married the
petitioner and for this marriage, the banns were read in her maiden name and she was married in
that name. Respondent had however disclosed her previous marriage to the petitioner and had
proved that for at least two years prior to the second marriage, she had been commonly known by
her maiden name. the petitioner asked for a decree of nullity on the ground that the marriage was
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void for undue publication of banns. Held that the provisions of the marriage law were directed
against the concealment of identity for the purpose of avoiding inquiries. Therefore, the marriage in
1928 was invalid and the petitioner was entitled to a decree]
v. Without certificate of notice from registrar
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vi. By a person not licensed to conduct marriages

c. S10(c) Marriage Act – registrar should be satisfied that there is no impediment or affinity or any
other lawful hindrance to the marriage.
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d. S12 of the Divorce Act [articulate further the grounds for a court declaration that a marriage was
null and void]
i. that the respondent was permanently impotent at the time of the marriage;
ii. that the parties are within the prohibited degrees of consanguinity, whether natural or legal, or
affinity;
iii. that either party was a lunatic or idiot at the time of the marriage;
iv. that the former husband or wife of either party was living at the time of the marriage, and the
marriage with the previous husband or wife was then in force;
v. that the consent of either party to the marriage was obtained by force or fraud, in any case in
which the marriage might be annulled on this ground by the law of England.

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e. Other laws
i. PCA
1. S149
2. S153

Voidable Marriages
1. Legal Framework
a. Section 4 of The Divorce Act, Cap 249 provides the grounds (As modified for universal
application by the decision in FIDA & Ors v AG Constitutional Petition No. 2 of 2002.)
i. Adultery
ii. Cruelty

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iii. Desertion
b. Issue of whether irretrievable breakdown of marriage is a valid ground for voiding a marriage
was considered in two cases from the same court with differing conclusions:
i. Julius Rwabinumi v Hope Bahimbisomwe, CIVIL APPEAL NO.30 OF 2007 [question of
whether marriage had irretrievably broken down though had been decided in the affirmative in the
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HC but CoA held that there was no evidence to support irretrievable breakdown. This implies that
the court acknowledged it as a ground but was merely not satisfied with the evidence.]
ii. Rebecca Nagidde v Charles Steven Mwasa Civil Appeal No. 160 of 2018 [Egonda-Ntende J
took a strictly positivist view holding that the grounds in Section 4 of The Divorce Act, as modified
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by FIDA & Ors v AG, are clear and irretrievable breakdown of marriage does not apply IN
Uganda as it is not one of the stated grounds under Section 4.]

Case Law on other factors voiding a marriage

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a. Non-consummation (distinguish from impotence which renders a marriage void ab initio per
S.12(1)(a) of The Divorce Act)
i. De Reneville v De Reneville [non-consummation rendered a marriage voidable]
ii. K v K [1960] 1 EA 717 [The appellant petitioned for a decree of nullity of marriage on the
ground that the respondent had willfully refused to consummate the marriage. Issue was what
amounts to consummation in law i.e. whether partial penetration such as would appear to have
taken place in this case can be said to have been consummation in the legal sense. Held If there be a
reasonable probability that the lady can be made capable of vera copula – of the natural sort of
coitus, though without power of conception – I cannot pronounce this marriage void. If, on the
contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural

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coitus, I would pronounce the marriage void. Penetration to amount to consummation does not have
to be full]
iii. D v A [1845] 1 Rob ECL 279 at 299 [physical deformities which make consummation difficult
must be those which cannot be corrected. If they can be corrected, courts are reluctant to declare the
marriage null & void] [wife had a physical deformity that made full penetration impossible and it
was held that this amounted to physical incapacity to consummate the marriage and hence it was
declared null and void. ‘consummation of the marriage requires ordinary and complete rather than
partial and imperfect sexual intercourse including erection and penetration but not necessarily
leading to orgasm. It certainly need not result in conception and the fact that the husband may be
sterile or the woman barren is legally irrelevant]

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 2. The rights and duties/ obligations of married people.
- Legal recognition of marriage at law
The parties are issued a certificate of marriage. Under Section 24, Section 25 and Section 27 of the
Marriage Act, the parties are always given a certificate of marriage after solemnization of the
marriage. Same in Section 7 of the Customary Marriages Registration Act Cap 248 and Section 7
of the Marriage and Divorce of Mohammedans Act Cap 252. The certificate is conclusive
evidence of marriage. Aiiya v Aiiya Divorce Cause No 8 of 1973.
- The parties become one at law
Balfour v Balfour [1919] 2 KB 571 rejected the notion that a contract between spouses intended to
be legally binding.
- Adhere to rules under which your marriage was contracted

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For example, monogamy for civil, church marriages whereas Islamic and customary marriages are
potentially polygamous. Section 4 of the Customary Marriages (Registration) Act.
The definition of marriage in Hyde vs Hyde is that marriage refers to the legal union of one man
and woman for life to the exclusion of others. Ayiko Mawa Solomon v Lekeru Annet Ayiko
(Divorce Cause 1 of 2015) a marriage that was previously potentially polygamous. Subsequent
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marriage under civil law will convert it into a monogamous one.
- Right to use husband’s name
This was the position in Fendal v Goldsmith LR 2 PD 263, where the court held that this right
stands even on termination of marriage, although the same is not compulsory.
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- Parties may acquire domicile of spouse
They may however acquire a domicile of their choice. In Law Advocacy for Women in Uganda v
Attorney General - Constitutional Petitions Nos. 13 /05 /& 05 /06 [2007], the court outlawed
Section 15 and 16 of the Divorce Act Cap 249 which created the concept of dependent domicile.
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- Right to consortium and conjugal rights

Section 20(1) of the Divorce Act states that if a husband or wife has without reasonable excuse
withdrawn from the society of the other, the wife or husband may apply by petition to the court for
restitution of conjugal rights. Court recognized this remedy under Nyabayango v Kabasinguzi and
Professor Gilbert Bukenya Balibaseka High Court Civil Suit No. 121 Of 2012 as one available
to a spouse that did not desire divorce but simply the restitution of conjugal rights.
Similarly, Desertion of the matrimonial home is a ground for divorce, if the spouse deserts for over
two years. In Tibenderana James V Rema Al-Torki Divorce Cause No 43 OF 2012, court
averred that to prove desertion, there must be certain outward physical conduct the factum of
desertion and secondly, animus deserendi which is intention. Factum is the act of an absconding

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party in leaving the matrimonial home. The contest is usually the intention. It must have been the
intention of the party leaving the home to break it up for good.
Marital rape was overtime not recognized at law until recently in Uganda v Yiga Hamidu [2004]
UGHCCRD 5. Court held that the presumption of consent, even where a man and woman were
validly married, were wiped out by the provisions of the Constitution which I have. Husband and
wife enjoy equal rights in marriage. They enjoy equal human dignity. No activity on the party of
any of the two which is affront to those rights in relation to the other, can be sustained by a court of
law.
- Right to spousal confidentiality
Section 121 (1)(a) of Evidence Act Cap 6, a spouse is a competent but non compellable witness
against their spouse. In Uganda v Kato & 3 Ors Criminal Session Case No 298 Of 1975 court

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found this to be true only in as far as there was a valid marriage subsisting between the parties.
- Right to matrimonial property
Article 26 of the Constitution of the Republic of Uganda guarantees the right to own property
individually or in association with others, ie, the spouse. In Julius Rwabinumi v. Hope
Bahimbisomwe, S.C. Civil Appeal No.10 of 2009 Kisaakye JSC stated that;
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“So, while I agree that Article 31 (1) of the Uganda Constitution (1995) guarantees equality in
treatment of either the wife or husband at divorce, it does not, in my opinion, require that all
property either individually or jointly acquired before or during the subsistence of a marriage
should in all cases be shared equally upon divorce.... In my view The Constitution of Uganda
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(1995), while recognizing the right to equality of men and women in marriage and its dissolution,
also reserved the constitutional right of individuals, be they married or not to own property either
individually or in association with others under Article 26 (1) of The Constitution of Uganda
(1995). This means that even in the context of marriage the right to own property individually is
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preserved by our constitution as is the right of an individual to own property in association with
others who may include a spouse, children, siblings or even business partners”.
Joint property must be divided equally on separation. this is matrimonial property, and in the case of
Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause No.0001 of 2015, court defined
matrimonial property as the property of the parties generated during the marriage otherwise than by
external donation. In the division of such property on separation, Court explained in Muwanga
Kintu V Kintu High Court Divorce appeal No 135 of the 1997, that each spouse’s contribution to
acquisition of joint property and the contribution may be direct, whether the contribution is
monetary or indirect where a spouse offers domestic services. It is immaterial on divorce that one
party was not as wealthy as the other. Indirect contributions include household expenses,

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preparation of food, purchase of children’s clothing, organizing children for school and generally
enhanced welfare of the family.
In the case of Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause No.0001 of 2015, Justice
Stephen Mubiru stated that “in absence of statutory provision, there can be no suggestion that the
status of marriage per se results in any common ownership or co-ownership of property. He referred
to the case of Julius Rwabinumi v. Hope Bahimbisomwe, S.C. Civil Appeal No.10 of 2009
where Kisaakye JSC stated above.
In Essa v. Essa, Kenya Court of Appeal Civil Appeal No. 101 of 1995 (unreported) it was held
that there is no presumption that any or all property acquired during subsistence of the marriage
must be treated as being jointly owned by the parties. It is therefore fully possible for the property
rights of parties to the marriage to be kept entirely separate. Whether the spouses contributing to the

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purchase should be considered to be equal owners or in some other proportions must depend on the
circumstances of each case.
There is a need to ascertain what constitutes matrimonial property. In the case of Muwanga Kintu
V Kintu High Court Divorce appeal No 135 of 1997, Justice Bossa as he then was, opined that
the matrimonial property is understood differently by different people. There is always that property
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which the couple choose to call home. There is property that maybe acquired separately by each
spouse before or after the marriage. There is also the property which the husband may hold in trust
for the clan. Each of the above should be considered differently. The property to which each spouse
should be entitled is the property which the parties chose to call home and which they jointly
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contributed to. This case brings out what constitutes matrimonial property and what does not
constitute matrimonial property.

Courts need to distinguish between individually owned property and property that parties jointly
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contributed to directly or indirectly.

1. The general practice of courts in presuming common ownership or co-ownership of property is in
respect of such property as is registered in the names of both spouses or property registered in the
names of one spouse, but in respect of which, there is evidence of the other spouse’s contribution to
the purchase of the property. In such cases, the spouses will be considered to be equal owners or in
some other proportions.
In the case of Bakiza V Nafuna Bakiza [Divorce cause No.22 of 2011], court stated that what
constitutes matrimonial property as a presumption of law is that property which is registered jointly
in the names of both parties to the marriage and in instances where the property is registered in the
joint names of both parties to the marriage entitles both of the parties to a legitimate claim over the

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property as its joint proprietors and as a matter of law, such property must be shared in equal
proportions at dissolution.
2. Where the disputed property is not so registered in the joint names of the spouses but is
registered in the name of one spouse, the beneficial share of each spouse would ultimately depend
on their proven respective proportions of financial contribution either direct or indirect towards the
acquisition of the property.
In the case of Muwanga Kintu V Kintu High Court Divorce appeal No 135 of the 1997, Justice
Bossa, opined that that direct contributions may be of financial nature in the running of the family
and home and indirect contributions may include paying for household expenses, preparing food
and clothing for the children, organising their schooling, and generally enhancing the welfare of the
family.

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Thus, in determining whether a particular property constitutes matrimonial property, contribution
made by either party is taken into account and usually courts require the party alleging that they
contributed to it to give proof of such contribution. Such property can be divided into categories for
instance;
a) property in respect of which there is evidence of acquisition before the petitioner’s marriage to
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the respondent. This property cannot be categorised as matrimonial property since it does not
constitute the matrimonial home especially where there is no evidence of joint acquisition during
the subsistence of the marriage.
b) property whose ownership the petitioner attributes to other persons for instance property
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belonging to the family of a spouse, company property, clan property among others.
c) properties belonging to a spouse of which there is no evidence as to when they were acquired.
Important to note is that the burden of proof lies on the spouse that desires court to find the property
as constituting matrimonial property, where such property falls under the above-mentioned
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circumstances as was stated in the case of Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause
No.0001 of 2015.
- Security of family property
Spousal consent required in dealing with family land. Section 39 of the Land Act Cap 227 as
amended. In the case of Oryem David vs Omony Phillip civil appeal 100 of 2018, court held that
the rule in section 39 that requires spousal consent applies regardless of which of the spouses owns
or rents the family land. And the consent has to be in the manner prescribed by the act.
- Right to start a family section 31 (1) (a), (b)
A man and woman above the age of 18 are entitled to start a family and to have equal rights at and
in marriage, marriages and at dissolution. In Rwabinumi vs Bahimbisomwe(supra) acknowledges
that men and women should have equal rights.

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- The right to live together

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 3. Grounds for divorce/dissolution of marriage and nullity of marriage.
Following the annulment of the various provisions of the law on the ground that they are
inconsistent with the provisions of the constitution, the court in the prominent case of Uganda
Association of Women Lawyers V A.G constitutional Petition No-2 of 2003 held that ‘the
grounds for divorce under Section 4 of the Divorce Act are now available to both men and women.
Similarly in Dr. Specioza Kazibwe v Eng. Charles Kazibwe Divorce Cause no.3 of 2003 court
stated that each of the grounds for divorce specified under Section 4 of the Divorce Act are
available equally to both the husband and wife… adultery can be proved by circumstantial evidence
or admission; in this case, it was admitted.”

Following the annulment of this provision, in Julius Chama V Specioza Rwalinda Mbabazi

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Divorce Cause No. 25 Of 2011 citing Gershom Masiko V Florence Masiko Civil Appeal the
court held that Since the Judgement in FIDA V AG, there has not been statutory amendments to
provide for this development, and the practice of courts therefore has been to adopt either the view
of the Constitutional Court in FIDA case (supra) that all grounds are equally available to spouses
who seek divorce, or, that the provisions of Section 4 have been expunged altogether. Therefore
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Courts look at the totality of the facts before it and determine whether the facts lead to the finding
that the marriage has irretrievably broken down and then divorce is granted. However, these
grounds are used as a basis for approaching the court.
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(a) ADULTERY
Adultery was defined in the case of Veronica Habyarimana v Perfect Habyarimana [1980] HCB
139, to mean the consensual sexual intercourse during the subsistence of the marriage between one
spouse and a person of the opposite sex not the other’s spouse, it is therefore sexual intercourse
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between two persons whom one or both are married but who are not married to each other. The
Halsbury’s Laws of England (2009, paras 1-154) defined adultery as ‘‘voluntary sexual intercourse
between a married person and a person of the opposite sex, who is not the other spouse, during the
subsistence of a marriage.’’

- Elements of Adultery
(a) Voluntary Sexual Intercourse
Redpath v Redpath and Milligan ([1950] 1 All ER 600, Sexual intercourse is normally a
consensual act, that is to say that it requires the consenting minds and bodies of both parties… Once
an act of intercourse is established the burden is on the wife to show that the act was one to which
she was forced against her will.

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(b) Penetration
Penetration of a woman by a man must be found to have taken place, albeit it need not be complete.
In Dennis v Dennis ([1955] 2 All ER 51, it was stated that to constitute adultery as a ground for
divorce, some penetration of the woman by the man must be found to have taken place, and though
the act to 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 of itself
sufficient ground for divorce. In Rutherfold v Richardson ([1923] AC 1, it was held that proof of
virginity (virgo intacta) was sufficient to prove that there was no adultery.

Getting pregnant provides circumstantial proof of adultery, although it can be disproved as in the
case of MacLennan v MacLennan (1958 SC 105) where there had been artificial insemination.

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- Time of the petition
The adultery relied upon in a petition must have occurred prior to the petition. This was discussed
in Musinga v Musinga (Divorce Cause No. 12 of 1992).
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- Standard and Burden of proof in adultery
This was discussed in Ayiko Mawa Solomon V Lekeru Annet Ayiko (Divorce Cause 1 Of 2015)
wherein citing Kakunka Edward v. Aliet Yudesi Kyoyanga, [1972] HCB 208; Ruhara Mary
(Mrs) v. Ruhara Christopher [1977] HCB 86 and Habyarimana Veronica v. Habyarimana
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Perfect [1980] HCB 139 that the standard of proof of adultery and cruelty is above the ordinary
preponderance of evidence but not as high as beyond reasonable doubt.

As regards the allegation of adultery, direct evidence proving the fact of commission of adultery is
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quite rare in divorce causes. At best, the evidence is mostly circumstantial. Ntabgoba, PJ, in
George Nyakairu v. Rose Nyakairu [1979] HCB, 261, commented thus; “in allegations of
adultery, it is not necessary to prove the direct fact of adultery for that fact is almost to be inferred
from circumstances as a necessary conclusion since it is indeed very rare that parties are ever
surprised during the direct act of adultery.

(b) CRUELTY
Zahara Nampewo in her chapter titled Till Violence Do Us Part: A Critical Analysis of the Legal
Regime on Cruelty as a Ground for Divorce in Uganda in The politics of Putting Asunder at
page 118 notes that cruelty postulates a treatment of the petitioner with such cruelty as to cause a

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reasonable apprehension in his or her mind that it would be harmful or injurious for him or her to
live with the other party.

The law on cruelty has since time immemorial emphasised physical cruelty. This form was first
discussed in Nunzio Colarossi v Michelina Colarossi [1965] E.A. 129 wherein the court stated
that every petition based on cruelty is that the party seeking relief must prove some kind of
suffering in form of actual or probable injury to life, limb or health. The emphasis on physical
violence and sexual assault which was the narrow conceptualization of this ground of Divorce was
seen in the case of Habyarimana v Habyarimana,[1980] HCB 139 wherein the husband had
always pulled the wifes’s hair, the court held that there is no definition of cruelty in the Divorce Act
but case law has established that no conduct can amount to cruelty unless it has the effect of

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producing actual or apprehended injury to the petitioners’ physical and mental health. There must
be danger to life, limb or health, bodily or mental or reasonable for it to constitute cruelty. The court
therefore ruled in her favour. In this decision, Justice Odoki also established a crucial feature of
physical cruelty, namely, that the result of the action, not its form, is important in determining
whether or not the conduct is cruel.
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Physical acts that amount to cruelty also include banishment and acts that goes beyond mere
embarrassment and mistreatment as was explored in the case of Nassuna Edith Zavuga v Jasper
Nimron Semwanga and Haji Senyonjo (Divorce Cause No. 10 of 2003, p. 10, When the
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respondent threw the petitioner out of their bedroom to sleep in an unfinished room or corridor and
barred her out of the house when she returned from work, the court deemed him to have committed
cruelty. Shutting the petitioner out of the house could put her in danger, as she has no idea what
might happen to her outdoors in the dark.
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Mental Cruelty
Mental cruelty was defined in the case of M V. Bhagat v Mrs. D. Bhagat (A.I.R. 1994 S.C. 710),
as the acute mental pain, agony and suffering would not make it possible for either parties to live
with each other. Russell v Russell (1897) AC 395 was the first case to look into it, in which the
husband attempted to demonstrate cruelty on the part of his wife, who accused him of homosexual
acts. Because there was no actual harm, his complaint was dismissed. This instance, on the other
hand, sparked a debate about the existence of mental cruelty.

As a result, in Gollins v Gollins ([1963]) 2 All E.R.966, the English courts looked into it further
where the court stated that whether cruelty has been established as a matrimonial offence is a

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question of fact and degree that should be determined by taking into account the particular
individuals involved and the particular circumstances of the case, rather than by any objective
standard; accordingly, in cases where the two spouses are of normal physical and mental health, and
the respondent spouse's conduct is so bad that the obnoxiousness of the obnoxiousness of the
obnoxiousness.

The aforementioned were discussed in the Ugandan case of Kasasa v Kasasa ([1976] HCB 348,
which held that for an act to amount to mental cruelty, the respondent must have conducted himself
or herself in such a way as to cause mental injury to their spouse, or to such an extent as to raise a
reasonable fear that he or she would either inflict actual injury on them or cause her actual injury on
their mental or bodily injury.

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Nassuna Edith Zavuga v Jasper Nimron Semwanga and Haji Senyonjo (Divorce Cause No 10
of 20) which extensively quoted Harlsbury’s Statutes of England and Wales n.d Vol. 2, noting that
in all cases of cruelty, the entire matrimonial relationship must be evaluated, and that this rule is
especially important where the cruelty consists of harmful reproaches, complaints, accusations, or
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taunts rather than physical acts. It is undesirable to consider judicial pronouncements in cases where
no violence is alleged in order to create certain categories of acts or conduct as having or lacking
the nature or quality that renders them capable or incapable of amounting to cruelty in all
circumstances; for it is the effect of the conduct, not its nature, that is of paramount importance in
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assessing a cruelty complaint. Whether one spouse has been guilty of cruelty to the other is
essentially a question of fact and previously decided cases have little, if any, value. The court
should bear in mind the physical and mental condition of the parties as well as their social status,
and should consider the impact of the personality and conduct of one spouse on the mind of the
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other, weighing all incidents and quarrels between the spouses from that point of view; further, the
conduct alleged must be examined in the light of the complainant’s capacity for endurance and the
extent to which that capacity is known to the other spouse.

Actions that amount to cruelty

1. Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No.30 of 2007), wherein the acts of
cruelty amounted to repeated use of abusive and derogatory language towards her, which caused
extreme mental torture and anguish, frequent beatings, persistent accusations of adultery and
involvement in witchcraft, refusal to eat food prepared by her, persistent late coming back home
between 3 and 4 a.m., as well as forceful ejection of her and her son from the matrimonial home on
baseless grounds. These acts were held to amount to cruelty.

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2. Denial and Deprecation have equally been found to amount to cruelty. This was explored in the
case of Catherine Alak Leku v Jackson Leku (Divorce Cause No. 08/2009) wherein the court
found the respondent guilty of cruelty when he abandoned the matrimonial home and his wife and
children, except on infrequent occasions when he returned to quarrel.

3. Excessive drinking has equally been recognized as cruelty in Uganda as explored in the case of
Margaret R. Hough v Allan David Hough (HCT-01- CV-DC-0001/2006) wherein the court was
of the view that the bad smell from the tin, the fact that someone had to clean up the mess in the
room and even throw out the urine, are matters which no doubt affected the petitioner’s health and
wellbeing, especially since all this happened with the knowledge of the domestic help which was

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humiliating to the petitioner.

4. Sexual abuse equally amounts to cruelty as was discussed in the case of Nassuna Edith Zavuga
v Jasper Nimron Semwanga and Haji Senyonjo (Divorce Cause No. 10 of 2003), court found
the respondent to have committed cruelty when he stopped the petitioner from working and often
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forced her into unwanted sex and under unhygienic conditions.

5. Use of the words of menace importing the actual danger of bodily harm will justify the
interposition of the court, as the court should not wait until the mischief is actually done. This was
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explored in Natalia Musinga v Felix Musinga ([Divorce Cause no 12 of 1992] and followed in
Vivian Ntanda v James Kayemba (Divorce Cause No. 4 of 2007) wherein Court held that “even
one incident of assault may amount to cruelty as to warrant dissolution of a marriage, if
established”.
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(c) DESERTION
In Ayiko Mawa Solomon V Lekeru Annet Ayiko (Divorce Cause 1 Of 2015) referring to the
Black’s Law Dictionary 9th Edition 2009, at page 211, the court defined desertion as the wilful and
unjustified abandonment of a person’s duties or obligations, especially to military service or to a
spouse or family.

The concept was explained further by Lord Porter in the case of Lang v. Lang [1954] 3 ALL ER
571 where he stated at page 573 that;-
To establish desertion two things must be proved: first certain outward and visible conduct- the
factum of desertion and secondly the "animus deserendi"- the intention underlying this conduct to

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bring the matrimonial union to an end. In ordinary desertion the factum is simple: it is the act of the
absconding party in leaving the matrimonial home. The contest in such a case will be almost
entirely as to “animus”. Was the intention of the party leaving the home to break it up for good, or
something short of, or different from, that?”

In Ayiko it was stated that as to the animus there must be proof of lack of intent to return and
resume the marital relationship. The respondent against whom desertion is alleged may testify as to
intent but cannot evade the effect of his or her conduct. The passage of time in and of itself cannot
constitute an intention to desert. Intention to leave the home and break it up for good is to be
determined in each case from all the evidence on the record. The circumstances must disclose some
definite act(s) showing an intention to desert. Such intention must be shown by clear and

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satisfactory evidence. There will be desertion from, and only from, the time when that intention is
formed or can be inferred.

In Family Law the five elements of spousal desertion are

1) a cessation of cohabitation,- Factum of desertion.
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2) the lapse of a statutory period,
3) an intention to abandon. As to the animus there must be proof of lack of intent to return and
resume the marital relationship. The respondent against whom desertion is alleged may testify as to
intent but cannot evade the effect of his or her conduct. The court ascertains the respondent’s intent
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by considering all of the facts and circumstances. The passage of time in and of itself cannot
constitute an intention to desert. Intention to leave the home and break it up for good is to be
determined in each case from all the evidence on the record
4) a lack of consent from the abandoned spouse, and
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5) a lack of spousal misconduct that might justify the abandonment.

In Ayiko it was stated that Although lack of spousal misconduct that might justify the desertion is a
requirement established by case law, it should be construed in light of the constitutional prohibition
against subjecting persons to any form of torture or cruel, inhuman or degrading treatment (see
article 24 of The Constitution of the Republic of Uganda, 1995). Engaging in adultery or cruelty
is not the sort of sharing behaviour which marriage should have to endure.

Constructive Desertion
Constructive desertion was explained by Asquith, LJ in Buchler v Buchler to emphasise that it
must be more than the ordinary ‘wear and tear’ of married life:

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Constructively, the deserter may be the party who remains behind, if that party has been guilty of
conduct which justifies the other party in leaving. Secondly, to afford such justification the conduct
of the party staying on need not have amounted to a matrimonial offence, such as cruelty or
adultery. But thirdly, it must exceed in gravity such behaviour, vexatious and trying though it may
be, as every spouse bargains to endure when accepting the other ‘for better or worse.’ The ordinary
wear and tear of conjugal life does not in itself suffice/ ([1947] P. 25 & 45)
In Gollins v Gollins ([1963] 2 All E.R. 966 H.L, Lord Reid said:
…if without just cause or excuse, you persist in doing things which you know your wife will
probably not tolerate, and which no ordinary woman would tolerate, and then she leaves, you have
wilfully deserted her, whatever your desire or intention may have been
In Nassuna Edith Zavuga V Jasper Serwanga 2 Anor, DC No. 10 of 2003, Rwamisazi Kagaba J

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held that desertion can be constructive where one of the parties in the marriage makes it difficult for
the other person to live in their matrimonial home and that person leaves. desertion is umpired on
that person who was making it difficult for the other to stay in their matrimonial home. As a result
of what Samantha did, life became difficult for Napoleon and he felt confused and betrayed. He
couldn’t take it any longer at his own home thus deciding to take up a job in the United Arab
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Emirates (UAE) in order to have peace of mind away from Samantha.

(D) Other Grounds to divorce

Section 4(2)(b) of the Divorce Act
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has been guilty of—
(i) incestuous adultery;
(ii) bigamy with adultery;
(iii) marriage with another woman with adultery;
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(iv) rape, sodomy or bestiality;

(v) adultery coupled with cruelty

2. GROUNDS FOR NULLITY OF A MARRIAGE

Section 12 of the Divorce Act contains grounds that make a marriage void.
12(a) that the respondent was permanently impotent at the time of the marriage
12(b) that the parties are within the prohibited degrees of consanguinity, whether natural or legal, or
affinity
In Bruno Kiwuwa v Ivan Sserunkuma and Anor HCCS 52 of 2006 noted that intra clan
marriages are repugnant and thus brother and sister cannot get married according to customary law
and Section 149 of the Penal Code Act, Cap 120 on the offense of incest.

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12(c) that either party was a lunatic or idiot at the time of the marriage. This was discussed in the
case of Sheffield City Council v E and another [2004] EWHC 2808- “. . . The law . . . can be
summed up in four propositions.
(i) It is not enough that someone appreciates that he or she is taking part in a marriage ceremony or
understands its words.
(ii) He or she must understand the nature of the marriage contract.
(iii) This means that he or she must be mentally capable of understanding the duties and
responsibilities that normally attach to marriage.
(iv) That said, the contract of marriage is in essence a simple one, which does not require a high
degree of intelligence to comprehend. The contract of marriage can readily be understood by

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anyone of normal intelligence. There are thus, in essence, two aspects to the inquiry. The first is
whether the person understands the nature of the marriage contract. But this, as the authorities
show, merely takes us to the central question: does he or she understand the duties and
responsibilities that normally attach to marriage?
This in turn leads to two further questions.
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(1) What are the duties and responsibilities that normally attach to marriage? In other words, what
are the essential attributes of the contract of marriage that the person has to be mentally capable of
“understanding”? . . .
(2) What is meant for this purpose by “understanding”?”
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12(d) that the former husband or wife of either party was living at the time of the marriage, and the
marriage with the previous husband or wife was then in force. This was discussed in John Tom
Kintu Muwanga v Myllious Gafabusa Kintu wherein the parties were customarily married and
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petitioned for divorce under the Customary Marriage and Registration Act on grounds that the
appellant (husband) was cruel, adulterous, and had deserted the wife for at least two years.
However, since he could not prove that he was married to the other woman, he was found to have
committed adultery. Justice Bossa held that if the person married under customary law continues to
marry more wives under the same type of marriage he does not commit adultery. However, the
situation is different where the other person involved is not legally married to that person under
customary law. There, the association must be clearly adulterous. More so, in Bujara v Bujara
(High Court Divorce Civil Appeal No. 81 of 2002), the husband was found to have committed
adultery because there was no evidence of any customary marriages with the other women.

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12(e) that the consent of either party to the marriage was obtained by force or fraud, in any case in
which the marriage might be annulled on this ground by the law of England
This was discussed in Hirani v Hirani [1983] 4 FLR 232- “The crucial question in these cases,
particularly where a marriage is involved, is whether the threats, pressure or whatever it is, is such
as to destroy the reality of consent and overbears the will of the individual. It seems to me that this
case of a young girl, wholly dependent on her parents, being forced into a marriage with a man she
has never seen in order to prevent her (reasonably from her parents’ point of view) continuing in an
association with a Muslim which they would regard with abhorrence. But it is as clear a case as one
could want of the overbearance of the will of the petitioner and thus invalidating or vitiating her
consent.”

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 4. Absolute and discretionary bars to divorce.
The law places legal bars to securing a divorce as one of the steps of discouraging parties from
terminating the marital relationship. These include absolute and discretionary bars to marriage. In
the case of Kivumbi V Kivumbi (1975) HCB 139, Sekandi J stated that under S.9 (now S.8 (2) of
the divorce decree, it is essential not only that the respondent be guilty but also that the petitioner is
innocent and justly aggrieved by the other’s wickedness.

Absolute Bars
The absolute bars, commonly referred to as the three Cs, are connivance, condonation and
collusion, the purpose being to ensure that the petitioner comes to court with ‘clean hands’ and does
not benefit from his or her own wrongdoing.

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Condonation: means knowingly forgiving a matrimonial wrong and restoring the offending spouse
to the same position as he or she occupied before the matrimonial wrong. Three elements are
essential to condonation: (1) knowledge, (2) forgiveness, and (3) revival of conjugal rights. The bar
of condonation is founded on the principle that one cannot both approbate and reprobate. (see
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Howard v. Howard (1962) 2 ALL ER 543 )
This refers to forgiveness, knowing that an unlawful act had taken place the petitioner goes ahead
and forgives the respondent.
Mugoya V Mugoya (1975) HCB 295, it was held that for there to be condonation, the innocent
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spouse must intend to forgive the other and remit the matrimonial offence. He or she must set the
seal upon the forgiveness by reinstating the offending spouse to the matrimonial position he/she
held. Section 9 of the Act
In Cramp v. Cramp (1920) P. 158 the decision in this case was that for condonation to exist the
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forgiveness must be followed by cohabitation and the restoring of the offending party to their
former position as husband or wife. Similarly, in Crocker v. Crocker (1921) P. 25, it was held that
there was no condonation because there was no reinstatement.

Connivance: was defined in Churchman v. Churchman as a situation where a party to a divorce case
has a ‘corrupt intention of promoting or encouraging either the initiation or the continuance of the
spouse’s adultery’. It is where the adultery of one spouse has been caused or has been knowingly
permitted by the other spouse. In this case, the other spouse is an accessory to adultery. This is
where the petitioner’s conduct has led to the act of the respondent which is the ground for divorce
for examples where a man procures the wife for prostitution; he cannot turn around and want to

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divorce her on that basis. In Gibbs V Gibbs (1988) U.s 371, the husband took money from a man
sleeping with his wife; court held that the husband had connived. Sections 6 - 8 of the Divorce Act

In such cases the other spouse is an accessory to the matrimonial offence. If the court is satisfied of
the evidence that the petitioner has been an accessory or has connived at the offence then it has to
dismiss the petition. The principles as to what constitutes connivance were laid down in
Churchman v. Churchman (1945) P 44 it was stated as follows: “It is the essence of connivance
that it precedes the event and generally speaking the material event is the inception of the adultery
and not its reputation although connivance at the continuous of an adulterous association may show
that the party conniving must be taken to have done so at the first. In this case it was stated that the
material event is the inception of the adultery, that is when the petitioner first knew of the

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adulterous association, he must have connived for the adultery to happen.”

Collusion: means that the spouses worked collaboratively for one of them to commit a matrimonial
offence with the intention of obtaining a divorce. Put differently, the husband and wife collaborate
to fabricate evidence with the intention of obtaining a divorce. Some of the examples include
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agreeing to a matrimonial offence that will form part of the divorce petition or paying money to the
petitioner to initiate a divorce. However, in a situation where a spouse changes his or her mind
before the divorce is concluded, that spouse can use collusion as a defence to prevent the divorce.
In Brine v. Brine, 1924 SA SR 432 Sir Francis defined collusion to mean an agreement expressed
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or implied between the petitioner and the respondent for the purpose of obtaining a divorce contrary
to the justice of the case.
In Churchward v Churchward (1910) P. 195, the petitioner declined to divorce his wife who
wanted to marry the co-respondent until she had made a settlement in favour of the children of the
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marriage and she agreed to do so since she wanted to be released from the marriage, deposited some
amount and the petitioner then filed his petition. It was held that this amounted to collusion. The
court stated that there are two kinds of collusion, where the parties put false facts to facts to form
the basis of judgement or where the parties put forward facts which are true but which have been
corruptly pre-concocted to form the basis of the judgement.

Section 6 of the Divorce Act obliges the court to inquire into whether the petitioner was an
accessory to the adultery or had condoned it. Section 7 makes it mandatory for the court to dismiss
the petition if it is proved that the petitioner either condoned, connived or colluded with the
adultery. The duty to inquire into the application of absolute bars is mandatory irrespective of

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whether the petition is defended or not, or whether or not the respondent pleads the absolute bars as
a defence.
Thus, before pronouncing a decree nisi for the dissolution of the marriage, the court should be
satisfied that there is no condonation, collusion or connivance between the parties. In Y. Mugonya
v. Trophy Nakabi Mugonya [1975] HCB 297, it was stated that proof of condonation requires
evidence of forgiveness and reinstatement of the relationship, although the further commission of
matrimonial offences revives the condoned offence. As to the standard of proof required to establish
that the ground for divorce has been condoned, it was held by Lord Denning in Blyth v. Blyth
[1966] AC 643, that: So far as the bars to divorce are concerned, like connivance or condonation,
the petitioner need only show that on balance of probability he did not connive or condone as the
case may be.

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Discretionary Bars
Discretionary bars are bars where the court is given the liberty to either refuse or grant the divorce.
Under Section 8(2) of the Divorce Act, the court has the discretion to grant a divorce in situations
where the petitioner is guilty of unreasonable delay, has also committed a matrimonial offence, or
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willfully or by neglect conducted adultery. Nonetheless, although the court’s discretion is
unfettered, it must not be exercised arbitrarily but judicially taking into account the rights of the
parties, the interests of society and public morality.
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Unreasonable delay
Delay that is unexplained may be fatal to a petitioner’s relief and in Johnson v. Johnson (1903) it
was stated that the reason why courts insist on steps being taken promptly are that it is a terrible
thing that people should go around and about neither married nor unmarried possibly liable to
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contract fresh and illegal matrimony and certainly exposed to the temptation to commit adultery.
The court is saying that once a marital offence has been committed then parties are in a state of
limbo, they do not discharge their usual marital obligations and the temptation to commit adultery is
there and that is why the court wants them to take steps promptly. In Binney v. Binney the husband
took no steps for divorce until his wife had been living with another man for 20 years and even so
only petitioned for the purpose of freeing himself to marry another woman. It was held that there
had been culpable delay and the petition was dismissed.

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 5. The law, procedure and documents to contract and prevent the solemnization of a
marriage.
Section 6 of the Marriage Act is to effect that a party interested in conducting the marriage to issue
a notice to the registrar where the marriage is to be conducted. Further, section 9 of the Marriage
Act provides that the notice shall be entered into the marriage notice book.
Section 10 of the Marriage Act further states that the registrar is to issue a certificate upon
swearing an affidavit by the parties that a party is a resident and of age stating that he does not fall
under the prohibited degrees of consanguinity or kinship and that he is not a party to any subsisting
Customary Marriage.
Section 26 further states that marriage shall be before the registrar with presence of two witnesses
between the hours of 10:00am and 4:00pm; and for church, section 20 applies between 8am and

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6pm.

A. Notice; sec 6 of the Marriage Act.

Republic of Uganda
Form A.
M Notice of Marriage
The Marriage Act.
To the registrar of marriage for …….[District]……. Of Uganda.
I give you notice that a marriage is intended to be had within three months from the date of this
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notice between me, the undersigned, and the other party named in the notice.

Name Condition Occupation, Age Consent (if Dwelling or place of

rank or any) and by abode
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profession whom given

Bridegroom Bachelor or
widower

Bride Spinster or
widow

Witness my hand, this --------day of -----------, 2022

Signature:

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 B. Registrar’s Certificate (of no Objection to the Marriage); sec 10 of the Marriage Act.
The Republic of Uganda
Form C
Registrar’s Certificate
The Marriage Act
I, --------------------, registrar of marriages in the ------------------district of Uganda, certify that on
the --------day of ------ 2022, notice was duly entered in the Marriage Notice Book of this district of
the marriage intended between the parties named and described in this certificate, the notice being
delivered under the hand of --------------, one of the parties.

Name Condition Occupatio Age Consent Residence Length of

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n, rank or residence
profession

(Man) Bachelor

(Woman) Spinster
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Date notice entered ----------------- Date certificate given -------------------
No caveat has been entered against the issue of the certificate; or A caveat was entered against the
issue of the certificate on the --------- day of ----------, 2022, but it has been cancelled.
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Witness my hand, this --------- day of -------------, 2022.
------------------------------------------​​----------------------------------------------
Registrar of marriage District
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Note: This certificate will be void unless the marriage is solemnised on or before the ---- day of -----
2022

C. Caveat preventing the Solemnization (occurrence) of Marriage; sec 13 of the Marriage Act.
A caveat is a statutory injunction preventing the performance or intermeddling with a certain state
of affairs. The procedure of lodging a caveat is provided for under Section 13 and 14 of the
Marriage Act. They state the following:
Section 13 states that a Caveat may be entered against the issue of certificate. Any person whose
consent to a marriage is required by this Act, or who may know of any just cause why the marriage
should not take place, may enter a caveat against the issue of the registrar’s certificate, by writing at
any time before its issue the word “Forbidden” opposite to the entry of the notice in the Marriage
Notice Book, and appending to the word his or her name and place of abode, and the grounds upon
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or by reason of which he or she claims to forbid the issue of the certificate, and the registrar shall
not issue his or her certificate until the caveat shall be removed under sections 14 to 16.
Section 14 stipulates that when a caveat enters a question to be referred to court. Whenever a caveat
is entered against the issue of a certificate, the registrar shall refer the matter to the High Court, and
that court shall thereupon summon the parties to the intended marriage, and the person by whom the
caveat is entered, and shall require the person by whom the caveat is entered to show cause why the
registrar should not issue his or her certificate, and shall hear and determine the case in a summary
way, and the decision of the High Court shall be final.

CAVEAT FORBIDDING MARRIAGE

THE REPUBLIC OF UGANDA

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IN THE MATER OF THE MARRIAGE ACT, CAP 251
AND IN THE MATTER OF A CAVEAT FORBIDDING SOLEMNISATION OF A
MARRIAGE
CAVEAT FORBIDDING MARRIAGE
TO: ………………………………
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Take notice THAT I, ………………….. (Name and address) being the ……………… to
…………… who intends to get married at ……………. (Place) on …………………………
(Date) do hereby forbid the marriage (solemnisation) on grounds that:
1. (outline the grounds)
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My address for service for purposes of this caveat is …………………
DATED at ……………………… this …………… day of ……………….. 20………..
SIGNED by the said _______________________________
CAVEATOR
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BEFORE ME
_______________________________
COMMISSIONER FOR OATHS

Declaration
THE REPUBLIC OF UGANDA
IN THE MATER OF THE MARRIAGE ACT, CAP 251
AND IN THE MATTER OF A CAVEAT FORBIDDING SOLEMNISATION OF A
MARRIAGE
STATUTORY DECLARATION
(Section 13 of the Marriage Act, Cap 251)

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I, ------------------ of –[Address]----, do hereby solemnly declare and state on oath that the above is
true and correct information to the best of my knowledge
And I make this solemn declaration consciously believing the same to be true in accordance with
the Statutory Declaration Act Cap 221 Laws of Uganda
Declared at……..this…….day of……………
By the said ----------------

Before me;
………………………………...
Commissioner for Oaths

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 D. Application for a Special Licence; sec 12 of the Marriage Act.
Pursuant to section 12 of the Marriage Act Cap 251; a party can apply to the Minister of Justice for
a special licence to have the notice period dispensed with. This certificate is provided for under the
first schedule Form D of the Marriage Act Cap 251

THE REPUBLIC OF UGANDA

FIRM A7 AND CO ADVOCATES,
P.O.BOX 23
LIRA UGANDA

12th March, 2022

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The Minister of Justice & Constitutional Affairs;
Kampala – Uganda

Dear Sir/Madam,
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RE: APPLICATION FOR A SPECIAL LICENCE TO MARRY
We act for and on behalf of our client, ---------- on whose instructions we address you as follows;
Our client intends to get married to ---------------- within the -------------- (--------- days).
……….situation demands a speedy procedure to the intended marriage since…………..[reason for
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the speedy procedure]……
In reference to the above, our client wishes, and we hereby apply, that you exercise your discretion
to furnish her/him with a special licence dispensing with the requisite notice period of 21 days and
permission to marry at the [place] within -------- days after receipt of this application.
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We thank you for your indulgence in the matter.

Yours Sincerely,
-------------------------
(COUNSEL FOR THE APPLICANT)

Affidavit to the Minister

THE REPUBLIC OF UGANDA

IN THE MATTER OF THE MARRIAGE ACT, SECTION 12 CAP 251
AND

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 IN THE MATTER OF AN APPLICATION FOR A SPECIAL LICENCE IN THE
MARRIAGE OF NANGIRO CECILIA AND LOMOE STEPHAN
AFFIDAVIT IN SUPPORT OF APPLICATION
I ---------------- resident of …………………………. do hereby make oath and state as follows;
1. That I am ……… adult Ugandan citizen, of sound mind and an applicant herein and swear this
affidavit in that capacity.
2. That I am above 18 years of age
3. That I have not contracted any marriage with any person in Uganda or outside Uganda.
4. That I am not related to my prospective husband and therefore there is not any impediment of
kindred or affinity or any other lawful hindrance to the marriage.
5. That I wish to be married within the next --------------- days having [circumstances warranting

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special licence].
6. That I wish to get married at [place of intended marriage, if not church or other licensed place].
7. That I have been a resident of…………………………………for the last ------- days.
8. That I swear this affidavit verily knowing and believing the contents to be true and correct to the
best of my recollection and information as disclosed.
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Dated this…………day of ……………20………
Sworn by the said;
……………
Deponent
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Before me
……..……………………………….
Commissioner for Oaths
Drawn & Filed By:
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6. The legal implications of marriage.
I. Legal recognition of the marriage at law
The parties are issued a certificate of marriage. Under Section 24, Section 25 and Section 27 of the
Marriage Act, the parties are always given a certificate of marriage after solemnization of the
marriage. Same in Section 7 of the Customary Marriages Registration Act Cap 248 and Section 7
of the Marriage and Divorce of Mohammedans Act Cap 252. The certificate is conclusive
evidence of marriage. Aiiya v Aiiya Divorce Cause No 8 of 1973.
II. The parties become one at law
Balfour v Balfour [1919] 2 KB 571 rejected the notion that a contract between spouses intended to
be legally binding.

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III. Adhere to rules under which your marriage was contracted
For example, monogamy for civil, church marriages whereas Islamic and customary marriages are
potentially polygamous. Section 4 of the Customary Marriages (Registration) Act.
The definition of marriage in Hyde vs Hyde is that marriage refers to the legal union of one man
and woman for life to the exclusion of others. Ayiko Mawa Solomon v Lekeru Annet Ayiko
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(Divorce Cause 1 of 2015) a marriage that was previously potentially polygamous. Subsequent
marriage under civil law will convert it into a monogamous one.
IV. Right to use husband’s name
This was the position in Fendal v Goldsmith LR 2 PD 263, where the court held that this right
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stands even on termination of marriage, although the same is not compulsory.
V. Parties may acquire domicile of spouse
They may however acquire a domicile of their choice. In Law Advocacy for Women in Uganda v
Attorney General - Constitutional Petitions Nos. 13 /05 /& 05 /06 [2007], the court outlawed
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Section 15 and 16 of the Divorce Act Cap 249 which created the concept of dependent domicile.
VI. Right to consortium and conjugal rights
Section 20(1) of the Divorce Act states that if a husband or wife has without reasonable excuse
withdrawn from the society of the other, the wife or husband may apply by petition to the court for
restitution of conjugal rights. Court recognized this remedy under Nyabayango v Kabasinguzi and
Professor Gilbert Bukenya Balibaseka High Court Civil Suit No. 121 Of 2012 as one available
to a spouse that did not desire divorce but simply the restitution of conjugal rights.
Similarly, Desertion of the matrimonial home is a ground for divorce, if the spouse deserts for over
two years. In Tibenderana James V Rema Al-Torki Divorce Cause No 43 OF 2012, court
averred that to prove desertion, there must be certain outward physical conduct the factum of
desertion and secondly, animus deserendi which is intention. Factum is the act of an absconding

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 party in leaving the matrimonial home. The contest is usually the intention. It must have been the
intention of the party leaving the home to break it up for good.
Marital rape was overtime not recognized at law until recently in Uganda v Yiga Hamidu [2004]
UGHCCRD 5. Court held that the presumption of consent, even where a man and woman were
validly married, were wiped out by the provisions of the Constitution which I have. Husband and
wife enjoy equal rights in marriage. They enjoy equal human dignity. No activity on the party of
any of the two which is affront to those rights in relation to the other, can be sustained by a court of
law.
VII. Right to spousal confidentiality
Section 121 (1)(a) of Evidence Act Cap 6, a spouse is a competent but non compellable witness
against their spouse. In Uganda v Kato & 3 Ors Criminal Session Case No 298 Of 1975 court

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found this to be true only in as far as there was a valid marriage subsisting between the parties.
VIII. Right to matrimonial property
Article 26 of the Constitution of the Republic of Uganda guarantees the right to own property
individually or in association with others, ie, the spouse. In Julius Rwabinumi v. Hope
Bahimbisomwe, S.C. Civil Appeal No.10 of 2009 Kisaakye JSC stated that;
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“So, while I agree that Article 31 (1) of the Uganda Constitution (1995) guarantees equality in
treatment of either the wife or husband at divorce, it does not, in my opinion, require that all
property either individually or jointly acquired before or during the subsistence of a marriage
should in all cases be shared equally upon divorce.... In my view The Constitution of Uganda
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(1995), while recognizing the right to equality of men and women in marriage and its dissolution,
also reserved the constitutional right of individuals, be they married or not to own property either
individually or in association with others under Article 26 (1) of The Constitution of Uganda
(1995). This means that even in the context of marriage the right to own property individually is
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preserved by our constitution as is the right of an individual to own property in association with
others who may include a spouse, children, siblings or even business partners”.
Joint property must be divided equally on separation. This is matrimonial property, and in the case
of Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause No.0001 of 2015, court defined
matrimonial property as the property of the parties generated during the marriage otherwise than by
external donation. In the division of such property on separation, Court explained in Muwanga
Kintu V Kintu High Court Divorce appeal No 135 of the 1997, that each spouse’s contribution to
acquisition of joint property and the contribution may be direct, whether the contribution is
monetary or indirect where a spouse offers domestic services. It is immaterial on divorce that one
party was not as wealthy as the other. Indirect contributions include household expenses,

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preparation of food, purchase of children’s clothing, organizing children for school and generally
enhanced welfare of the family.
In the case of Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause No.0001 of 2015, Justice
Stephen Mubiru stated that “in absence of statutory provision, there can be no suggestion that the
status of marriage per se results in any common ownership or co-ownership of property. He referred
to the case of Julius Rwabinumi v. Hope Bahimbisomwe, S.C. Civil Appeal No.10 of 2009
where Kisaakye JSC stated above.
In Essa v. Essa, Kenya Court of Appeal Civil Appeal No. 101 of 1995 (unreported) it was held
that there is no presumption that any or all property acquired during subsistence of the marriage
must be treated as being jointly owned by the parties. It is therefore fully possible for the property
rights of parties to the marriage to be kept entirely separate. Whether the spouses contributing to the

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purchase should be considered to be equal owners or in some other proportions must depend on the
circumstances of each case.
There is a need to ascertain what constitutes matrimonial property. In the case of Muwanga Kintu
V Kintu High Court Divorce appeal No 135 of 1997, Justice Bossa as he then was, opined that
the matrimonial property is understood differently by different people. There is always that property
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which the couple choose to call home. There is property that may be acquired separately by each
spouse before or after the marriage. There is also the property which the husband may hold in trust
for the clan. Each of the above should be considered differently. The property to which each spouse
should be entitled is the property which the parties chose to call home and which they jointly
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contributed to. This case brings out what constitutes matrimonial property and what does not
constitute matrimonial property.

Courts need to distinguish between individually owned property and property that parties jointly
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contributed to directly or indirectly.

1. The general practice of courts in presuming common ownership or co-ownership of property is in
respect of such property as is registered in the names of both spouses or property registered in the
names of one spouse, but in respect of which, there is evidence of the other spouse’s contribution to
the purchase of the property. In such cases, the spouses will be considered to be equal owners or in
some other proportions.
In the case of Bakiza V Nafuna Bakiza [Divorce cause No.22 of 2011], court stated that what
constitutes matrimonial property as a presumption of law is that property which is registered jointly
in the names of both parties to the marriage and in instances where the property is registered in the
joint names of both parties to the marriage entitles both of the parties to a legitimate claim over the

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property as its joint proprietors and as a matter of law, such property must be shared in equal
proportions at dissolution.
2. Where the disputed property is not so registered in the joint names of the spouses but is
registered in the name of one spouse, the beneficial share of each spouse would ultimately depend
on their proven respective proportions of financial contribution either direct or indirect towards the
acquisition of the property.
In the case of Muwanga Kintu V Kintu High Court Divorce appeal No 135 of the 1997, Justice
Bossa, opined that that direct contributions may be of financial nature in the running of the family
and home and indirect contributions may include paying for household expenses, preparing food
and clothing for the children, organising their schooling, and generally enhancing the welfare of the
family.

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Thus, in determining whether a particular property constitutes matrimonial property, contribution
made by either party is taken into account and usually courts require the party alleging that they
contributed to it to give proof of such contribution. Such property can be divided into categories for
instance;
a) property in respect of which there is evidence of acquisition before the petitioner’s marriage to
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the respondent. This property cannot be categorised as matrimonial property since it does not
constitute the matrimonial home especially where there is no evidence of joint acquisition during
the subsistence of the marriage.
b) property whose ownership the petitioner attributes to other persons for instance property
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belonging to the family of a spouse, company property, clan property among others.
c) properties belonging to a spouse of which there is no evidence as to when they were acquired.
Important to note is that the burden of proof lies on the spouse that desires court to find the property
as constituting matrimonial property, where such property falls under the above-mentioned
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circumstances as was stated in the case of Ayiko Solomon V Lekuru Annet Ayiko Divorce Cause
No.0001 of 2015.
IX. Security of family property
Spousal consent required in dealing with family land. Section 39 of the Land Act Cap 227 as
amended. In the case of Oryem David vs Omony Phillip civil appeal 100 of 2018, court held that
the rule in section 39 that requires spousal consent applies regardless of which of the spouses owns
or rents the family land. And the consent has to be in the manner prescribed by the act.
X. . Right to start a family section 31 (1) (a), (b)
A man and woman above the age of 18 are entitled to start a family and to have equal rights at and
in marriage, marriages and at dissolution. In Rwabinumi vs Bahimbisomwe(supra) acknowledges
that men and women should have equal rights.

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XI. The right to live together

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7. Forms provided in the Divorce Rules in relation to matrimonial proceedings and all legal
documents relevant in this area of study. Students are strongly advised to practice how to
draft these documents including the Orders of court.

8. Orders that can be awarded in matrimonial proceedings.

1. An Order of Judicial Separation
➢ Section 14 of the Divorce Act which is to the effect that a husband or wife may petition the court
for judicial separation on the grounds of cruelty, adultery or desertion without reasonable excuse for
two years or upwards.
➢ Separation was defined in Kasirye v Kasirye (Civil Appeal No. 96 of 2014) by Judge Eva
Luswata who basing on the Black’s Law Dictionary defined it “…as an arrangement whereby a

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husband or wife live apart from each other while remaining married either by mutual agreement or
by judicial decree.” In the same case, judicial separation was distinguished from divorce where she
stated that judicial separation unlike divorce was not a complete termination of marriage. She
further stated that where parties had specifically prayed for judicial separation, the Magistrate was
wrong to grant them divorce.
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Basing on this definition and Section 14 above, a judicial separation
➢ Does not end in marriage but only suspends conjugal rights of husband and wife.
➢ As the parties are legally still married, any subsequent married contracted during this period
especially for monogamous marriages is void
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➢ It is not a right and therefore parties must prove to the required standards the grounds set forth in
Section 14 above.
In Lucas Bally v Florence Kiconco [2010] UGHC 5, it was held that a petitioner need not prove all
the grounds in Section 14 of the Divorce Act. In this case, a judicial separation order was granted
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even when the petition only proved that the Respondent had been adulterous.
Similarly, Mwondha J in Catherine Aleku v Jackson Aleku (Divorce Cause No. 8 of 2009) held
that for an order of decree for judicial separation to be granted, there has to be proof of either
cruelty, adultery, desertion or all of them.
➢ Section 15 and 16 of the Divorce Act speak to the fact that the wife shall be considered
unmarried in respect of property she may acquire and in respect to contracts, wrongs, injuries and
legal capacity.
➢ Where necessary, the court will decide on such matters as custody, property, alimony as the case
may be. In Lucas Bally v Florence Kiconco above, the court in granting the order of separation
gave conditions relating to the children including conditions relating to with whom they would stay
and the conditions under which the other parent could visit them.

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2. Protection Orders
➢ Provided under Section 18. It is to the effect that any wife in whose property the husband has
acquired interest by virtue of marriage if deserted by him may petition court for an order to protect
any property which she may acquire or has acquired after said desertion against him or his creditors
or any person claiming under him.
➢ The court if satisfied that the desertion was unreasonable may make that order. And while the
order is still in place, the wife shall in regards to contracts, property and her legal capacity be as if
she has obtained a separation order.
➢ The husband or any other creditor or person claiming under him may apply to court for the
discharge or variation of that order and court may if it deems it fit vary or discharge the order

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accordingly.
➢ Where the husband or creditor or person claiming under him seizes or continues to hold any
property of the wife after notice of any such order, the wife may by action recover the property and
also a sum equal to double its value.
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3. Divorce
Divorce can be described as the permanent termination or dissolution of a legally valid marriage by
a court of competent jurisdiction. It is only applicable to valid marriages. The grounds for divorce
are provided in Section 4 and once they are proved, court can grant;
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➢ Decree Nisi
Provided under Section 37(1) of the DA. Can be defined as a temporary court order. Gives the
couple some time to think clearly about their issues or decide on whether or not they want divorce.
➢ Decree Absolute
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Section 37(1) is to the effect that after the lapse of six months from the date on which the decree
nisi is issued, the petitioner then applies for the grant of a Decree Absolute. A grant of a decree
absolute is permanent and completely dissolves the marriage.

4. An order for restitution of conjugal rights

➢ Section 20(1) of the Divorce Act is to the effect that where a husband or a wife has without
reasonable excuse withdrawn from the society of the other, the wife or husband may petition for the
restitution of conjugal rights.
➢ The court on being satisfied that the allegations are true and there is no legal ground prohibiting
it may decree restitution of conjugal rights accordingly. S. (20)(2)

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In Nyabayango v Kabasinguzi HCCS No. 121 of 2012, where the petitioner prayed for restitution
of conjugal rights, it was held that Article 31 provides for the rights of the family including the
right to marry and to enjoy such equal rights peculiar to marriages. That the petitioner’s petition
displayed a cause of action as he was seeking to enforce rights spelt out in the constitution and other
marriage laws. That both divorce and restitution of conjugal rights are provided for in the Divorce
Act and a Plaintiff has a right to choose the nature of the case to be filed against a party, depending
on the injury he’s suffered and what remedies he’s willing to pursue.
➢ However, the enforcement of this order raises a number of questions. For instance, order of
specific performance or execution under this Section cannot be granted since conjugal rights must
be enjoyed voluntarily and without coercion as was held in Uganda v Yiga Hamidu (Criminal
Session Case 5/2002) – case speaks to marital rape.

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5. Caveats (orders as to compensation and costs)
Under Section 13 of the Marriage Act, any person may enter a caveat forbidding the issue of
certificate by the registrar. Once the caveat is entered, the registrar is obligated to refer the matter to
the High Court which shall then decide on whether the registrar should or should not issue the
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certificate. Once the High Court finds no justifiable ground for the caveat, it shall cancel the caveat
and instruct that the registrar issues the certificate. Particularly under Section 16, the court may
award compensation and costs to the party injured if it appears that a caveat was entered on
insufficient grounds.
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6. Alimony
➢ Section 23 of the Divorce Act is to the effect that a wife/husband may apply to court for alimony
pending the suit, and the court may make such order as it may deem fit. Exception is that alimony
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pending a suit shall in no case exceed 1/5 9: the husband’s/wife’s average net income for the three
years next preceding the date of the order and shall continue until in the case of a decree nisi of
dissolution or nullity of marriage until the decree is made absolute.
➢ Section 23(2) on Permanent alimony provides that the court may on a decree absolute or an
order of judicial separation may order the husband to secure the wife such sum of money as it
thinks reasonable. The court is to put into consideration the wife’s fortune, the ability of the
husband and the conduct of the parties. In FIDA v AG Constitutional Petition No. 2 of 2003, this
section among others was held to apply equally to men such that a husband can apply to court for
alimony.
➢ See also Damages for adultery under Section 21 of the Divorce Act.

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7. Orders in Muslim Divorce Proceedings
In relation to Muslim marriages, Section 18 of the MDMA specifically provides that the Divorce
Act shall not be applicable to parties who are married under Muslim law and any relief to be given
should be under Muslim law. To this end, the remedies/orders that can be granted are;
➢ Mahr
Quran 4:4 is to the effect that where Mahr (a mandatory gift to wife by husband upon marriage)
was not paid, the wife upon divorce is entitled to its payment since it is regarded as a debt against
the husband.
➢ Order as to maintenance of wife: the responsibility of husband to maintain the wife after
dissolution is provided under Quran 4:65. This obligation applies within the three month period of
pronouncing Talaq. If the wife is pregnant at the time of divorce, the husband is expected to support

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her until she delivers. The support to be provided will depend on the husband’s financial abilities
(Quran 65:7)
➢ Mut'ah (Consolatory gift)
Gift that is laid down by Islamic law to be paid where a divorce has not been caused by any defect
on the part of the wife, or by an application for a defect or fault of the husband. It is payable not
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only in the case of Talaq by husband but also in the case of Khul (Quran 2:231, 2:41, 2:36, 33:9)

1. Procedure for marriage under a Special Licence from the Minister.

Procedure of Marriage under a Special License/ Waive of Notice
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Marriage under special licence is an exception to the requirement for notice of marriage to be given
for 21 days. Granted where parties intend to get married within a short period of time less than 21
days.
• The general rule is that parties intending to get married sign and give the Registrar of the District
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in which the marriage is intended to take place under section 6 of the Marriage Act cap. 251. The
Notice is in form of Form A in the 1st Schedule to the Act.
• Per section 9(2) of the Marriage Act, the notice is to be placed in a conspicuous place for public
viewing for a period of 21 days.

Procedure for Application of Special Licence.

• Proceed under Section 12 of the Marriage Act which is to the effect that the parties intending to
get married can apply to the Minister (of Justice and Constitutional Affairs) for waiver of Notice.
This is upon proof by affidavit that there is no lawful impediment to the proposed marriage and the
necessary consent has been obtained.

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• Application is by ordinary letter and it is backed by an affidavit. Attach passport photographs,
copies of the National IDs for identification, LC1 letter for proof of residence
• Pay the necessary fees which is 300,000/= under the Second Schedule of the Act for licence to
waive notice.
• Where there is no objection, the special licence will be granted and parties can go ahead with the
marriage. The licence is in FORM D of the 1st Schedule of the Marriage Act.
• Parties shall still be issued a certificate of marriage in accordance with Section 24 and 25 of the
Marriage Act.

2. Recognize and deal with ethical considerations in matrimonial matters.

The ethical conduct of Advocates in Uganda is generally governed by the Advocates Act, Cap 227

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and the Advocates (Professional Conduct) Regulations S.I 267-2.
1. Duty to perform their services diligently and competently
The advice given to clients should always be in their best interest because no advocate should
knowingly and recklessly advice a client in ways a reasonable advocate would not as it would not
be in the best interest of the client and an abuse of court process as stipulated in Regulation 12 of
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the Advocates(Professional Conduct) Regulations.
Competent, prompt and diligent legal advice is crucial as an ethical consideration as each advocate
is expected to be well equipped with all relevant legal requirements to advise each client on
matrimonial requirements accordingly.
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2. Duty of confidentiality
Regulation 7 of the Advocates (Professional Conduct) Regulations specifically protects
information of matrimonial matters of clients from disclosure by their advocates except where this
becomes necessary in the conduct of the affairs of that client, or otherwise required by law. Case
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law has further established that this duty of non-disclosure enshrined in Regulation 7 is fiduciary in
nature and continues after the conclusion of the relevant legal matter and the termination of the
advocate-client relationship.
3. Duty to the child in Family law proceedings
Lawyers pledge to obey the law on admission to practice. Every lawyer becomes an officer of the
Court which, in turn, imposes certain duties which are fundamental to the rule of law. The first of
those duties is to the Court. Clients are often unable to understand that that duty applies ahead of
the lawyer’s duty to the client. In a case of the lawyer’s duty to the Court being in conflict with his
or her duty to the client, the duty to the Court takes priority.
In Clarkson v Clarkson (1972) FLR 112, at 114, in reference to family law proceedings, Selby J
held: The interests of the parties take second place. Regarding the interests of the child is the

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determining factor. … Recognised tactics of advocacy which may be in every way right and proper
are not necessarily of assistance in cases of this nature. … The task of counsel is a difficult one for,
while owing a duty to his client … he must always remain aware that the child’s interests come
before those of his client​
4. Lawful legal fees
Regulation 28 of the Advocates (Professional Regulations) Regulations is to the effect that an
advocate must not charge a fee below the specified fee under the Advocates (remuneration and
taxation of costs) Rules. This is done in order to prevent cancellation of the contract or agreement
for under payment. The Advocate is not supposed to exploit the client as an economic opportunity
and over bill them
5. Balancing the client’s needs and abiding by the law

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The client’s needs ought to be consistent with the law as an advocate cannot perform outside the
confines of the law and where the client’s instructions are in abuse of the law, and advocate ought to
withdraw from representing such clients as provided in Regulation 3(1)(b) of the Advocates
(Professional Conduct) Regulations S.I 267-2 which is to the effect that an advocate may
withdraw from representing a client where the client instructs the advocate to perform professional
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misconduct.
6. Duty to not exploit the client
Regulation 11 of the Advocates (Professional Conduct) Regulations S.I 267-2 ) is to the effect that
an advocate shall not exploit the inexperience, illiteracy, lack of understanding or any personal
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shortcoming of a client for his/her personal benefit of any other person.
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