FAMILY

There are two types of families, i.e. nuclear including father mother and children and
extended including uncles, aunts and grand parents. According to Bromley‘s, a family
is a basic social unit constituted at least by two people whose relationship may fall in;
a) Husband and wife.
b) Two persons living together as if married.
c) Parent living with children.
d) Brother Sister and other relations.

FUNCTIONS OF FAMILY LAW

a) Protection of the weak members of the family, i.e. physical, social or

economic protection
b) A mechanism for resolution of disputes
c) Confers status, privileges and rights
d) It allows property administration, adjustment and division

MARRIAGE

Article 31 of the constitution regulates the right to marry; it provides that, “Men and
women of the age of eighteen years and above have the right to marry and to found a
family…” this Article therefore provides sex and capacity of marriage.
In Corbett v. Corbett, two parties went through a ceremony of marriage and the
petitioner knew the petitioner was male at birth and had undergone sex change. 14
days later the petitioner applied for nullification of marriage.
Issue, whether there was marriage?
Held, while sex is an essential determinant of a relationship called marriage, it is not
the only essential element, but however sex is a characteristic that makes sex
distinguished from other relations and so there was no marriage.

*Balfour v. Balfour
A wife alleged that they entered an oral contract where the husband agreed to make
the wife an allowance of £30 a month. The two parties had not at that time agreed to
live apart but did so frequently when differences arose between them. In an action by
the wife against the husband to recover money which she claimed was due to her
under the agreement, the alleged consideration for that agreement being a promise by
her to support herself without calling upon the husband.
Held, there was no contract in legal sense, the alleged parole contract was no more
than a mere arrangement between the husband and wife living together in intercourse
and the parties never intended to make a bargain that could be enforced in law. Hence
there was no contract for maintenance.

PROMISES TO MARRY
These are legal implications that arise when one party makes inferences or commit
that commit them to marriage. Promises to marry can be enforced in particular
circumstances, however they need not be in writing since they can be inferred.
Promises have to be proved and corroborated.

Woodman v. Woodman
The plaintiff sued to recover damages for breach of promise to marry; she used
three letter evidence, i.e. one by herself, the second by her brother in law asking the
defendant to make his position clear and third by the pastor where the plaintiff prayed.
The defendant did not answer any of those letters. The plaintiff averred that silence
amounted to consent, she also relied on the fact that she picked a ring that belonged to
the defendant but he had not asked for it.
 The court did not find it satisfactory to amount to a promise and silence did not
amount to acceptance. All circumstances must be looked into before judging a case.

Larok v. Obwoya
The lady who was the Respondent and the Appellant were friends when the lady was
a pupil at college she became pregnant and as a result was expelled from the college.
The man then wrote to the lady promising to marry her by the end of April. This was
in 1968. In October he again wrote to the lady indicating that he was no longer keen
to marry her. The lady then went to court and sued for breach of promise to marry
and the lower court held that the man had committed a breach of the promise and
awarded the lady 2000 as damages. The court based its computation on two grounds
that the chances of getting married had been impaired and secondly the injury posed
to her feelings. The man appealed but his appeal was dismissed and the sum of 2000
shillings was to be paid.

However, it is important to note that promises to marry are not enforceable if they
are against public policy.

Spiers v. Hunt
The defendant promised to marry the plaintiff on the death of his wife which was
contrary to public policy. The defendant was aged 70yrs and had promised to marry
the plaintiff 35 yrs at the death of his wife. The plaintiff knew the defendant to be
married when he made the promise and they had indulged in sexual intercourse for 5
years during which they got children. The defendant‘s wife was older than the
defendant and she suffered from a heart problem from which she was expected to die
suddenly and earlier. However, she didn‘t die as early as expected and she survived
another 8 yrs. On her death, the defendant refused to marry the plaintiff who sued him
from breach of promise to marry.
Held, to hold such a contract enforceable is to introduce into social life a dangerous
and immoral principle and it is only in the most corrupt conditions of society that such
an agreement could be tolerated as lawful.

Notwithstanding the above, there are two exceptions to this rule;

i. If the plaintiff can show she lacked knowledge

Shaw v. Shaw
The plaintiff was a widow when she met the deceased who claimed to be a
widower and they agreed to marry, oblivious to the plaintiff, the wife of the deceased
was alive at the time and on the demise of the deceased, the plaintiff learnt that they
were not married and brought an action against the administrators of the estate of the
deceased who pleaded limitation Act and contrary to public policy since the wife was
still alive.
Held, promise to marry implied warranty that the deceased was in a position to do so
which warranty continued throughout the deceased‘s life time and the plaintiff‘s right
of action was not extinguished.
The plaintiff being unaware at all material times that the deceased was married, the
court was not under duty to raise the question whether the promise to marry was
unenforceable as contrary to public policy and the action was maintainable. The court
awarded her damages for breach of that warranty.

ii. If the promise to marry was made after decree nisi had been made;

Fender v. Mildmay
The respondent‘s wife petitioned for a divorce due to the respondent‘s adultery
with the appellant. On two occasions after declaration of decree nisi but before
declaration of decree absolute the respondent promised to marry the appellant, after
declaration of decree absolute the respondent refused to marry the appellant.
Held, there was no rule of public policy which prevented the contract from being
enforced. The enforcement of a contract is not against public policy unless it is likely
to lead to an injurious action.
The whole position of married parties is changed and fixed not by a mere separation
or lodging a petition for divorce, but by a pronouncement of decree nisi and the
further period of waiting after the decree is imposed in the public interesting order to
secure full disclosure before the court.

REMEDIES
Damages, i.e. general for hardship or injured feelings for example in Larok v.
Obwoya, punitive (exemplary) and special damages i.e. demand for a return of a
thing. Cohen v. Seller, the plaintiff demanded the return of the ring.

Cohen v. Seller (1926) 1 K.B. 536

The gift in question was a diamond engagement ring that had been given to the lady
and the issue was whether she should return the ring when the engagement was
broken and it was held that if it was the man who was guilty, or responsible for the
breach, then he could not demand the return of the engagement ring but if it was the
woman who had refused to fulfill the conditions of the agreement then she was
required to fulfill the conditions of the ring. It was found that it was the man who had
refused to carry out his promise and the woman was awarded general damages and the
lady allowed to keep the engagement ring.

In England this action of breach of promise to marry is no longer recognized. It was

abolished in 1970 by the Law Reform Miscellaneous Provisions)Act UK (1970) the
act abolished actions of breach of promise to marry

FORMATION OF MARRIAGES
The laws of Uganda recognise;
a. Civil/ Christian marriage
b. Customary marriage
c. Islamic marriage
d. Hindu marriage

CHURCH OR CIVIL MARRIAGE

According to Lord Penzance in Hyde v Hyde (1866) LR 1 PD 130, concerning the
validity of a Mormon marriage, marriage may be defined as "the voluntary union for
life of one man and one woman to the exclusion of all others". This is still true today
in that marriage must be voluntary, heterosexual and monogamous, and although it is
no longer necessarily for life, the law does not recognise any fixed-term contract as
creating a valid marriage. Marriage is unlike any other contract, in that its terms are
laid down by the state and not by the parties themselves, nor can the parties by
themselves agree to its termination.

Church or civil marriage is governed by the Marriage Act

REQUIEREMENTS FOR VALID MARRIAGE (summary)

1. CAPACITY TO MARRY
In order to contract a valid marriage, the parties must possess the legal capacity to
marry and must comply with certain formalities: a failure in either respect renders the
marriage void.

A marriage is an agreement between a man and a woman which imposes rights and
duties between them and creates a recognised relationship governed by the marriage
Act.
  Under section 6, one party must give notice to the registrar or the person in
charge of a church.
 The notice must be posted for public knowledge for at least 21days according
to section 9.
 According to section 10 the registrar issues a certificate authorising this
marriage.
 If marriage is not done within three months of the notice a fresh notice is
needed according to section 11.
 Under section 10 a number of things have to be satisfied

One of the parties must be a resident of the district for at least 15days.
Both parties must be 21years and above unless one party is a widow or a widower.
If they are less than 21years parental consent is necessary.
They should not be related. Neither party should have been married under customary
law, unless it is the person in question transferring from customary to civil.

 Section 13 allows a person to lodge a caveat prohibiting marriage.

 According to section 17 there is need for written consent by the father, if he is
dead, insane or absent from Uganda, the mother or the guardian may give the
consent.

However the consent must not be maliciously withheld.

Fanuel Lenama 19(2) K L R 48
Whether the mother was competent to give consent of marriage of her minor
daughter? The court held that the mother was competent to give the consent.

There are procedural requirements

 The place where the marriage is celebrated must be licensed i.e. place of
worship or the office of the registrar.
 The marriage must be celebrated by a recognised minister or a registrar,
section 20
 The marriage must be celebrated with open doors between 8:00am and
6:00pm
 There must be two witnesses apart from the minister celebrating and there
after filling of certificate. Section 20(2)

i). marriage should be heterosexual. Nature of marriage

The nature of civil/Christian marriage is monogamous.
In Hyde v. Hyde, it was stated that marriage is the voluntary union for life of one man
with one woman to the exclusion of all others. Article 31 prohibits same sex
marriages.

Corbett v. Corbett (1970) 2 All E.R. 33

In this particular case the parties went through a ceremony of marriage at the time of
the marriage the petitioner knew that the respondent had been registered at birth as
being of the male sex and had undergone a sex change operation and since that
operation had lived as a woman. After 14 days of marriage the petitioner filed a
petition for a declaration that that marriage was null and void on the ground that the
respondent was a person of the male sex or alternatively for a decree of nullity on a
decree of non consummation of marriage. It was held among other things that
marriage is essentially a relationship between a man and a woman the respondent
having been a biological male from birth rendered the so called marriage void. It was
held that the Respondent was incapable of consummating the marriage and that it was
a nullity.
this means that the parties must be single, divorced or widowed.

ii) AGE
article 31 of the constitution.
Parties must be of Age to contract a marriage. Under our current laws the parties
must be 18 years of age and above that is the minimum age of marriage under
statutory law. however s. !0 of the marriage Act recognises minimum age as 21..there
vis need to harmonise this section with article 31.

Pugh V. Pugh (1951)

A man of age over 16 years married a girl aged 15 years and it was held that that
marriage was void and in his ruling the judge gave the reasons why requirement as to
age is provided for by stating that it is considered socially and morally wrong that a
person of an age at which we believe them to be immature should have the stresses,
responsibilities and sexual freedom of marriage and the physical strain of childbirth.

iii) PROHIBITED DECREES OF RELATIONSHIPS

Relationship by way of consanguinity or affinity.

Relationship by consanguinity is where you have blood relationships and affinity is
relationship by way of marriage. These marriages are regarded as incestuous and are
prohibited for health reasons and inbreeding. Inbreeding gives one imperfect stock
and that is why these marriages are prohibited.
S.10 (c ) marriage act..before marriage the registrar should be satisfied that there is
not any impediment of kindred or affinity, or any other lawful hindrance to the
marriage
S.149 of the Penal Code provides for offence of incest.

CHENI V CHENI
In 1924 the husband and the wife, who were Sephardic Jews domiciled in Egypt, went
through a ceremony of marriage in accordance with Jewish rites. At the same time
they entered into a marriage contract known as a katouba, which provided that the
husband could not take a second wife even if after ten years she had not borne him a
living child, except with the authorisation of the Rabbinical Court. The husband was
the maternal uncle of the wife. In 1926a child was born. In 1957 they came to
England where they were now domiciled. The wife now by her petition sought to
have the marriage declared null and void on the ground that the parties were within
the prohibited degrees of consanguinity. The husband raised the preliminary point that
the court had no jurisdiction to hear the suit since the marriage was potentially
polygamous.

At the hearing it was established (i) that by Jewish law the birth of the child in 1926,
ie, within ten years after the marriage, had rendered the marriage monogamous for all
purposes; (ii) that by Egyptian law the validity of a marriage is determined by the
religious laws of the parties; and (iii) that by Jewish law the marriage between uncle
and niece was not prohibited.

Held –(i) the court had jurisdiction to hear the suit since at the date of the proceedings
the marriage was monogamous..
(ii) the marriage between the parties would be recognised as valid by English law
since it was so recognised by the court of the domicil at the time of the ceremony and
since the marriage of uncle and niece was not contrary to the general consent of
Christendom or of civilised countries, if that were the test, nor contrary to public
policy, if that were the test, nor was the validity of the marriage contrary to the
conscience of the English court.

De Barros v De Barros
The petitioner and the respondent were domiciled in Portugal and first cousins to each
other. Hey contracted a marriage in Englad but returned to Portugal, their domicil. By
law of Portugal a marriage between first cousins was illegal as being incestuous, but
maybe celebrated under papal dispensation,

Held; the parties being by the law of the country of their domicil under a personal
disability to contract marriage, their marriage was null and void. Though such
marriage was valid in England.
Per Cotton LJ, “it is a well recognised principle of law that the question of personal
capacity to enter into any contract is to be decided by the law of domicile‖

iv) SUBSISTING MARRIAGE.

s. 10(d) the registrar should allow the parties to marry if he is satisfied that neither of
the parties to the intended marriage is married by customary law to any person other
that the person with whom such marriage is proposed to be contracted. the Penal Code
creates an offence of bigamy under S.153

CHARD V CHARD
husband went through a second ceremony of marriage sixteen years after his wife was
last known to be alive. husband was in prison all these years,
held..there was no presumption of law either of the continuance of first wife's life or
of her having died . the correct inference was that the first wife was alive on the date
of the second marriage hence second marriage was void.
The Kenyan case of K v K
In 1970 the petitioner went through a form or ceremony of marriage with the
respondent, at the District Commissioner‘s office, Nairobi. At the time, the
respondent was married to one Grace Waiyaki Kang‘ara in accordance with Kikuyu
customary law. That marriage had never been dissolved or annulled but was still
subsisting. Counsel for the petitioner argued that under the Matrimonial Causes Act,
under which the petition had been brought, a monogamous marriage is the union of
one man and one woman to the exclusion of all others and as such if there existed
another marriage contracted under customary law, this one was null and void.

The court held that only a monogamous marriage could be created by a ceremony
under the Marriage Act and as the husband was already married, the ceremony was
valid and created no marriage status. Therefore the respondent had committed
adultery with the co-respondent. And Decree nisi was granted.

2. REQUIREMENTS AS TO FORMALITIES
There are a number of formalities to be followed if one is getting married under
statutory law.

A. NOTICE
Parties who seek to get married under statutory law must give notice of their intention
to get married and this is provided for under Section 6 of the Marriage Act. This
notice is given at the office of the registrar of marriages in the District where the
parties reside. Always saving that notice the registrar then enters it in a marriage
notice book that he or she maintains and he is also required to publish that notice by
affixing a copy of the notice outside his office and the notice stays there for a
maximum period of 3 months or until the marriage certificate is issued to the parties.

This requirement mainly arises from the fact that in evolution of marriage under
common law it was demanded that a marriage be a public act and should not be
celebrated in private but in a public place.
When giving notice the parties must attach an affidavit stating the following that at
least one of the parties has been resident within that district for at least 15 days; that
the parties have attained the age of 21 years but if the parties range between 16 and 21
years they must attach a consent in writing from their parents or guardians. this lasw
is subject to article 31 of the constitution.
That they are not related in any way i.e by blood or marriage ..
That they are not married to any other person under any law at the time of issuing
such notice.

These requirements are found in Section 10 of the Marriage Act.

Under Section 13 - if any person is dissatisfied with that notice, he or she either
places a caveat in the marriage notice book giving his or her reasons for challenging
the intended marriage and this caveat is placed by entering the word FORBIDDEN
opposite the entry of the notice. The person who places the caveat then appears
before a judge or a magistrate whereby he or she is then required to show why the
marriage should not take place and the decision of the court in this regard is final.
consider the two kenyan cases

In the matter of the marriage of Alfred Nderi & Charity Kamweru and the case of
EF & EC
The facts in these two cases are very similar but the rulings were quite different. In
both cases the man gave notice of his intention to marry a lady and a caveat was then
placed by the Respondent in both cases claiming that the man was already married to
the Respondent and therefore had no capacity to contract the intended marriage. In
Nderi‘s case it was actually 2 caveats and it was held that the common knowledge that
Nderi had in fact been married to both women under Kikuyu Customary Law while
one of the marriages had been dissolved the other one had not. It was held that the
registrar should therefore not issue the certificate of marriage because Nderi did not
have capacity to marry under statutory law.

In the matter between EL AND EC the caveator claimed that she had eloped with a
man and therefore he had no capacity to marry another woman. In this case it was
found that the formalities under customary to contract a marriage had not been met
and especially the consent of her family to that marriage had not been given and
therefore she could not invalidate the intended marriage because she did not have a
marriage with the man and the caveat was thus removed from the notice book.
if the registrar is however satisfied with the notice and is satisfied that no caveat has
been registered, then he may issue a certificate of compliance and in that certificate
indicate that a marriage should take place within three months of the notice being
given. If the marriage does not take place within the 3 months, then the notice and all
proceedings consequent to that notice shall be void and if the parties still intend to get
married, fresh notice must be given.

The role of the registrar is sometimes performed by church ministers whereby rather
than give notice at the registrar‘s office the church minister announces in the church
which the parties attend that the parties intend to get married better known as bans of
marriage and this is a recognise and valid way of publishing the notice to get married..

B. CONSENT

If below 21 years consent in writing from parents or guardian is required.

Re Bennet (1974) 45 DL.R 409

In Re Bennet a 16 year old girl sought an order to dispense with her parental consent
to her intended marriage and the court refused to give that order insisting that consent
must be given for the marriage to proceed. This is still subject to article 31

In PAROJCIC V PAROJCIC
The petitioner‘s father, after fighting with anti-communist forces in Yugoslavia, left
the country in 1944; he reached England in 1947. The petitioner and her mother, after
suffering many hardships, left Yugoslavia and arrived in England on 11 November
1956. In London they were met by the petitioner‘s father and the respondent, a
Yugoslav refugee, whom the father introduced to the petitioner as the man whom she
was to marry. The respondent was fourteen years older than the petitioner. The
petitioner refused the proposal. During the period between 11 November and 29
December 1956, there were quarrels between the father and the petitioner concerning
the proposed marriage. The father threatened to send the petitioner back to
Yugoslavia if she did not marry the respondent; she told her father that she would
rather commit suicide than return there. On 28 December there was an argument
between them about the marriage and the father struck her. On 29 December 1956, the
petitioner and the respondent, in the presence of her father and two other Yugoslavs,
went through a ceremony of marriage at a register office. The petitioner, so the court
found, understood the nature of the ceremony. After the ceremony the petitioner said
that she did not agree, locked herself in her room, and did not thereafter see the
respondent again. Both parties to the marriage ceremony were found to have acquired
domicil of choice in England. On petition for nullity on the grounds of mistake and
duress,

Held –though the petitioner had understood the nature of the ceremony, she had
established that she never consented to the marriage, but was driven to go through the
ceremony by terror instilled in her by her father‘s threats; therefore, a decree of nullity
would be granted. The effect of duress on marriage is to render it voidable, not void

c. CELEBRATION OF THE MARRIAGE

The requirements about celebrations are found in Sections 20 – 26 of the Marriage

Act. The Marriage must be celebrated by a licensed person either a registrar of
marriages or a church minister. The marriage should also be celebrated in a licensed
place. Again this is the registrar‘s office or in a church though there are certain
exceptions. The marriage should take place between 8 am and 6 p.m in public and in
the presence of two witnesses. However if the marriage is being celebrated in the
registrar‘s office it should take place between 10am and 4 p.m.

Section 21 provides that if the person celebrating that marriage knows of an

impediment in respect to that marriage then he shall not celebrate the marriage.

Under Section 28 of the Marriage Act, the Minister incharge of Marriages may
authorise a marriage to be celebrated in a different place upon request and he or she
has to authorise a licensed person to celebrate that marriage.

Gereis v Yagoub [1997] 1 FLR 854, Judge Aglionby ; M and W went through a
purported marriage in a Coptic orthodox church. Neither the church nor the priest who
conducted the ceremony were licensed for marriages, and no prior notice was given to
the superintendent registrar. The priest warned M and W that they would have to have
a civil wedding as well, but for some reason they did not do this. When the
relationship broke down a year later, W sought a decree of nullity but M argued there
had never been even a void marriage that could be annulled. Granting W's application,
the judge said the parties had treated their relationship as a marriage - M had claimed
a married man's tax allowance, for example - and since it was clearly void there
should be a decree of nullity. Obiter, no decree would be needed (and no offence
would have been committed by the celebrant) if the ceremony was clearly no more
than a "mock marriage", as for instance in a theatrical production.

D. REGISTRATION

After compliance with all the requirements the parties then register their marriage and
they are issued with a marriage certificate. They are required to sign the marriage
certificate in duplicate and their signatures must be witnessed by two witnesses.
Sections 24 and 25.
VOID & VOIDABLE MARRIAGES
There are circumstances where a marriage may be considered invalid.

A marriage may be either void or voidable. If it is voidable, the marriage remains

valid until it is formally annulled by an order of the court, and a decree of annulment
can be sought only by one (or both) of the parties during the lifetime of both. A void
marriage 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.
In theory a void marriage is void in itself, irrespective of any decree, but in practice a
formal decree is normally sought first for the removal of any doubt and second
because the court annulling a marriage has discretion to make certain orders (e.g. for
financial support) similar to those available in the event of divorce.

De Reneville v De Reneville [1948] 1 All ER 56, CA ; An Englishwoman W married

the Comte de Reneville in France, and lived with him there for five years until the
German occupation. She subsequently sought a decree of nullity for H's inability or
wilful refusal to consummate the marriage. In preliminary proceedings, the judge and
the Court of Appeal accepted H's argument that the English courts had no jurisdiction
in the matter. Inability and wilful refusal to consummate make a marriage voidable
rather than void, so the marriage continued in being unless and until a decree was
pronounced. That being so, the marital domicile was in France (in spite of W's
residence in England for the past seven years), and it was the French courts who
should decide the matter. The fact that a decree would pronounce the marriage "null
and void to all ... purposes whatsoever", said Lord Greene MR, was a historical relic
which did not actually reflect the legal position.

―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 by a court of competent jurisdiction‖
per Lord Greene

In Re Roberts Walton J explained the difference in more detail. Where a marriage is

voidable, he said, the persons who are concerned with the grounds which make it
voidable are the parties to the marriage, and nobody 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
wish to take advantage of their undoubted right to have the marriage declared void.
For example, in the case of a marriage which is not consummated owing to the
incapacity of either party to consummate it they might very well wish to continue the
marriage. Similarly, if a party did not validly give their consent they may
nevertheless, when they come to the realisation of what has in fact taken place, still
wish to go through with it. Similarly, in the case of venereal disease or the fact that
the wife is pregnant by someone other than the petitioner. In other words, where the
marriage is voidable it is all a matter for the decision of the parties. In this case it was
held that lack of consent of whatever nature renders marriage voidable not void

A marriage is void if it violates formal requirements of marriage and it is voidable if it

violates informal requirements. A voidable marriage can be annulled at the instance of
the innocent party.
 In the case of a voidable marriage which is annulled, the declaration of a nullity
does not acts retrospectively except from the date of the declaration. For divorce the
decree acts retrospectively from the day the decree is declared absolute.

Section 34 Marriage Act provides situations when marriage will be declared null and
void.
(1) No marriage in Uganda shall be valid which, if celebrated in England, would be
null and void on the ground of kindred or affinity, or where either of the parties to it at
the time of the celebration of the marriage is married by customary law to any person
other than the person with whom the marriage is had.
(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce
in its celebration—
(a) In any place other than the office of a registrar of marriages or a licensed place of
worship, except where authorised by the Minister‘s licence;
(b) Under a false name or names;
(c) Without the registrar‘s certificate of notice or Minister‘s licence duly issued; or
(d) By a person not being a recognised minister of some religious denomination or
body, or a registrar of marriages.
(3) No marriage shall, after celebration, be deemed invalid by reason that any
provision of this Act, other than the foregoing, has not been complied with.

section 12 of Divorce Act Cap 249 gives grounds for a decree of nullity.
a. Where there is permanent impotence
b. If parties are within prohibited kinship
c. One party is of unsound mind
d. If one party has a husband or wife still living and the marriage is still
subsisting
e. If consent was through force or fraud
f. It will also be void if the female has not attained 16 and the man 18years of
age (subject to Article 31(1))

For cases on void marriage refer to cases on validity of marriage

Under false names

Chipcase v Chipcase (1941) 2 ALLER 560
The respondent was married in 1915 Shortly afterwards her husband deserted her and
she had not seen or heard of him since 1916. In 1928 she married the petitioner. For
this marriage the banns were read in her maiden name and she was married in that
name. The respondent had, however, disclosed her previous marriage to the petitioner
and it was proved that for at least a period of two years before her second marriage
she had been commonly known by her maiden name. It was found as a fact that she
had given her maiden name, not because she thought she would mislead people by
using her true name, but because inconvenience might arise from using that name.
The petitioner asked for a decree of nullity on the ground that the marriage was void
for undue publication of
banns:
Held – the provisions of the Marriage Act 1823, s 22, were directed against the
concealment of identity for the purpose of avoiding inquiries. The marriage in
1928 was, therefore, invalid, and the petitioner was entitled to a decree.

GROUNDS FOR VOIDABLE MARRIAGE

Non-Consumation
It was held in De Reneville that non-consummation rendered a marriage voidable
whether it is based on incapacity to consummate or owing to wilful refusal
Consummation of the marriage, according to Dr Lushington in D v A (1845) 163 ER
1039, 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. In this case the 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 it was declared null and void.

Physical deformities which make consummation difficult must be those which cannot
be corrected. If they can be corrected, courts are reluctant to declare such a marriage
null and void

S v S [1962] 3 All ER 55, CA ; A woman W had a malformed vagina making full penetration
impossible. The medical evidence was that this could be rectified by a simple operation,
though W would still be unable to conceive and her pleasure in the sexual act would not be
significantly enhanced. H's petition for nullity was denied: W was not unable to consummate
the marriage if surgery was available, and the other matters were irrelevant. Wilful refusal to
consummate a marriage implies a conscious act of volition, which is to be
distinguished from neglect that may be no more than a failure or an omission to do
what has been suggested; in the present case the wife had not come to a settled and
definite decision and the husband had failed to prove that she had wilfully refused to
consummate the marriage. Accordingly the husband‘s petition was dismissed and the
wife was granted a divorce on the ground of the husband‘s adultery.

K v. K, if so act of sex is so unnatural to be described as sex then there is no

consummation.

Singh v Singh [1971] 2 All ER 828, CA ; W (aged 17) went through a civil marriage with H.
It was an arranged marriage, prior to which W had never met H, and she thought him ugly
and uneducated. She sought an annulment, claiming inability to consummate the marriage
owing to an invincible repugnance, but failed. There was insufficient evidence of any such
inability, but obiter, a petition by H would probably succeed because of W's wilful refusal.

If either partner wilfully refuses to consummate the marriage, the other may petition for an
annulment: there were some 290 decrees of nullity granted on this basis in 1988, compared
with only about 80 based on incapacity and a mere handful for the annulment of a voidable
marriage on other grounds. (Decrees of nullity of a wholly void "marriage" are very rare: the
few that are granted are almost always because of bigamy.) The refusal must be settled and
definite, and arrived at "without just excuse": the husband is expected to use appropriate tact,
persuasion and encouragement if his wife is shy, and her resistance to insensitive demands
will not necessarily be regarded as wilful refusal.

Horton v Horton [1947] 2 All ER 871, HL ; H and W were married as Roman Catholics in
1944; H was still in the army, and decided they should not have children until they had a
home of their own. Because of their religion H and W were unwilling to use contraceptives,
and one attempt to consummate the marriage failed. Three years later, H sought an annulment
on the grounds of W's refusal to consummate the marriage. His petition failed on the facts, but
Lord Jowitt LC said obiter that "wilful refusal" means a settled and definite decision arrived
at without just excuse, taking into account the whole history of the marriage.

Baxter v Baxter [1947] 2 All ER 886, HL ; H and W were married, and throughout the
marriage W refused to allow H to have intercourse with her unless he wore a condom.
Refusing H's petition for an annulment, the House of Lords said consummation could occur
even when artificial contraception was used.

Cackett v Cackett [1950] 1 All ER 677, Hodson J ; Throughout the marriage, H insisted on
intercourse only by coitus interruptus in spite of W's repeated protests: W's parents had been
first cousins and H was determined that W should not conceive. The judge refused W's
petition for a decree of nullity and said the marriage had been consummated, but granted a
divorce on the grounds that H's persistence in this practice in spite of its obvious effects on
W's health amounted to cruelty.

Potter v Potter (1975) 5 Fam Law 161, CA ; H and W married, and found W was physically
unable to consummate the marriage. W underwent surgery and they tried again, but were
prevented by W's emotional state. H then declined to try further and W petitioned for
annulment on the grounds of H's wilful refusal. The judge dismissed the petition and W's
appeal also failed: H's refusal was the result of his loss of sexual ardour rather than a
deliberate decision.

Ford v Ford [1987] Fam Law 232, Judge Goodman ; H and W had a sexual relationship until
H was sent to prison. They married while he was in prison, but he refused to consummate the
marriage at the time and later said he did not want to live with W even after he was released.
W's petition for a decree of nullity was allowed: H's refusal to consummate the marriage in
prison was not a "wilful refusal", but his clear determination never to do so was sufficient.

Where the parties jointly regard some other act (usually a religious ceremony) as necessary
before consummation, refusal to participate in this other act will be regarded as refusal to
consummate.

Jodla v Jodla [1960] 1 All ER 625, Hewson J ; Roman Catholics H and W were married in a
register office, on the understanding that they would not consummate the marriage until after
a church wedding, yet to be arranged. W repeatedly asked H to arrange the church wedding
but he refused to do so. W's petition for a decree of nullity was granted: by refusing to arrange
the religious ceremony which their joint faith required, H was effectively refusing to
consummate the marriage.

Kaur v Singh [1972] 1 All ER 292, CA ; H and W were married in a register office, but their
shared Sikh religion required a subsequent religious ceremony to complete the marriage. H
refused to arrange such a ceremony and W petitioned for an annulment. The Court of Appeal
said H's refusal to implement the marriage was tantamount to a refusal to consummate it, and
W was granted the decree she sought.

A v J (Nullity) [1989] 1 FLR 110, Anthony Lincoln J ; H and W were of Indian ancestry and
took part in an arranged civil marriage, which was to be followed by a religious ceremony
some four months later. Between the two ceremonies they spent only a few days together
because of H's work in the USA. Shortly before the religious ceremony (which it was
accepted was a prerequisite to consummation), W refused to go ahead with it, giving as her
reason H's apparently uncaring and unloving attitude towards her. H apologised and said he
had supposed a formal relationship would be appropriate until they were "properly married",
but W refused to accept this apology and maintained her refusal to go through with the
religious ceremony. H was granted a decree of nullity for W's wilful refusal to consummate
the marriage.

FAILURE OF CONSENT - INSANITY

The formalities of marriage involve declarations of consent by both parties, and (even if the
officiant were to go ahead) in the absence of such declarations the marriage is void. Apparent
consent may not be real consent, however, if it is the result of insanity, duress (which does not
necessarily have the same meaning as in criminal law or contract) or a mistake as to the
identity of the other or the nature of the ceremony.

Durham v Durham (1885) 10 PD 80, Hannen P ; The Earl of Durham sought a decree of
nullity, and claimed his wife had not had the mental capacity needed for marriage. The judge
said the contract of marriage is a very simple one, which does not require a high degree of
intelligence to comprehend. But a person who understands the language of the ceremony may
still be affected by delusions or other insanity so as to have no real appreciation of its
significance. (On the facts, P's petition was dismissed: the judge decided R had had sufficient
capacity at the time of the marriage, though her condition had deteriorated later.)
Re Park [1953] 2 All ER 1411, CA ; A retired businessman D, whose physical and mental
health were poor, married at the age of 78 and died two weeks later. On the day of his
marriage he made a new will, superseding a previous will executed a year earlier. The
executors sought to prove the second will, but the jury found as fact that on that day D was
not of sound mind, memory and understanding. D's widow then brought an action to establish
the validity of the marriage and the consequent invalidity of the earlier will, under which most
of D's estate would have gone to other relatives. The Court of Appeal, affirming Karminski J,
said the marriage was valid and revoked the earlier will, so that D had died intestate. The test
is whether a party to marriage was capable of understanding the nature of the contract into
which he or she was entering, and that it involves the duties and responsibilities normally
attaching to marriage. An illiterate man might be able to understand the contract of marriage
in its simplicity, but coming into a sudden accession of wealth might be quite incapable of
making anything in the nature of a complicated will.

DURESS

A marriage is voidable at the instance of a party who has entered into it under duress. This
does not necessarily have the same meaning as in criminal law, though the decisions do not
make it entirely clear just how much pressure is required.

Scott v Sebright (1886) LR 12 PD 21, Butt J; A woman W sought a decree of nullity because
of fraud and duress. H had tricked her into taking over his debts, had then refused to help her
unless she married him, and once he had her in the register office (again by a trick) had
threatened to shoot her if she did not go through with the ceremony. H and W separated
immediately after the marriage, which was never consummated. The judge granted a decree
of nullity: W had not given the genuine consent the law required.

Lee v Lee (1928) 3 SW 2d 672, Supreme Court (Arkansas); W was pregnant by M. Having
established M's identity, W's father went to M with his rifle and told him he would "have to
give the baby a name". M and W then married, and M subsequently sought to have the
marriage declared void on grounds of duress. His petition succeeded even though W had been
unaware of what her father had done; this was still duress, said the judge, and if there had not
been a wedding there would probably have been a funeral.

Hussein v Hussein [1938] 2 All ER 344, Henn Collins J ; A young woman W petitioned for a
decree of nullity. Her evidence (which was accepted by the judge) was that shortly before her
marriage in England, her Egyptian husband-to-be had repeatedly threatened to kill her if she
did not agree. The judge granted the decree sought: it was obvious from a document W was
made to sign, he said, that H was avid of power over W (then aged 18), and that he exercised
that power and coerced her.

Buckland v Buckland [1967] 2 All ER 300, Scarman J ; A man H working in Malta

developed a friendship with a 15-year-old girl W; the friendship was platonic, but H was
arrested and charged with corrupting a minor. H affirmed his innocence, but his solicitor and
his employer both advised him that he was unlikely to be believed, and that his only hope of
escaping a substantial prison sentence was to marry W. Seeing no real alternative, H married
W that same day and subsequently came to England, where he sought to have the marriage
annulled. The judge granted a declaration accordingly: H had consented only because of his
reasonable fear of imprisonment, and that was not true consent.

Szechter v Szechter [1970] 3 All ER 905, Simon P ; Two Polish citizens H and W married in
Poland (then under Communist rule), so that W would be released from prison and they could
emigrate to Israel together. Later, both being domiciled in England, W petitioned for nullity.
Having taken notice of the fact that duress vitiated consent in Polish as well as English law,
the judge said it was not sufficient that consent was given to escape a disagreeable situation
such as penury or social degradation: a threat of immediate danger to life, limb or liberty was
needed. In this case, however, the necessary threat was clearly present, and the marriage
would be annulled.

Singh v Singh [1971] 2 All ER 828, CA ; See also above. A 17-year-old Sikh woman went
through an arranged marriage, but subsequently sought an annulment on the grounds (inter
alia) that she had gone through with the marriage only out of respect for her cultural traditions
and in deference to her parents' wishes. Refusing her petition, the court said this could not
amount to duress: there was no evidence that her will was overborne or that her consent was
obtained through force or fear.

Singh v Kaur [1981] Fam Law 152, CA ; A Sikh P sought annulment of his marriage on
grounds of duress. The marriage, when he was 21, had been arranged by his parents; P had
protested strongly, but had been told that refusal would lead to disgrace for his family and that
he would have to leave the family home and give up his place in the family business. The
Court of Appeal affirmed the judge's refusal to grant a decree of nullity: they were bound by
Singh v Singh, they said, and there had been no threats to P's life, limb or liberty.

Hirani v Hirani (1982) 4 FLR 232, CA ; A Hindu woman W, living with her parents, went
through a marriage arranged by her parents, but the marriage was never consummated and she
left her husband after six weeks. W sought a decree of nullity on the grounds of her parents'
duress, but initially failed because there was no evidence of any threat to her life, limb or
liberty. The Court of Appeal granted the decree: W's parents had threatened to throw her out
of the house if she refused to marry the man they had chosen, and this threat (coupled with
other pressure) was enough to destroy the reality of W's consent.

Mahmood v Mahmood [1993] SLT 589, Lord Sutherland (Scotland) ; A Pakistani wife W
petitioned for the annulment of an arranged marriage. She said her parents had threatened to
disown her, cut off all her financial support, and send her back to Pakistan if she did not go
through with the marriage, and had already disowned her elder sister. In preliminary
proceedings, the judge said there was a case to go for trial: the alleged threats were such as
might go beyond the limits of proper parental influence, and could overwhelm the will of a
young woman of W's age (21) and cultural background. But obiter, the consent required for
marriage need not be enthusiastic consent: reluctant consent is enough as long as it is genuine.

Mahmud v Mahmud [1994] SLT 599, Lord Prosser (Scotland) ; A Pakistani Muslim H
sought the annulment of his arranged marriage to a cousin in Pakistan, whom he had seen
only at the ceremony and never before or since. H's family had made him feel he was bringing
shame on them by his refusal, and after twelve years he had finally given in. Granting the
order sought, the judge said parents are entitled to apply pressure to persuade their children to
do what the parents think is right for them, but a marriage is invalid if there is not a genuine
change of mind. In the instant case, the pressure had been so great as to amount to force, with
the result that H's own will was overborne and his consent vitiated.

MISTAKE

A mistake as to the identity of the other party is generally sufficient to make a marriage
voidable, but a mistake as to his attributes, or as to the effect of the marriage, is not.

C v C [1942] NZLR 356, Callan J (New Zealand) ; A woman P met a man R who claimed to
be Michael Miller, a well-known boxer. She married him after a short courtship, but
subsequently found he was not Miller at all and sought an annulment. Her petition was
dismissed: the judge said P was mistaken as to R's attributes rather than his identity. She
intended to marry the man R standing beside her, and was mistaken only as to his name and
profession.

Re C & D (1979) 35 FLR 340, Bell J (Australia) ; H was born a true hermaphrodite, with both
male and female sexual organs; s/he was brought up as a boy, and underwent surgery as a
young adult to remove the external signs of femininity. He married a woman W, but the
marriage was never consummated and after a year W filed for nullity. Granting a declaration
of nullity, the judge said W had intended to marry a male and was therefore mistaken as to the
identity of her partner; that would be sufficient grounds. (Also, since marriage requires the
participation of one man and one woman, H did not have the capacity to enter a valid
marriage.)

Militante v Ogunwomoju [1994] Fam Law 17, Judge Owen ; A woman P married a man
calling himself Richard Ogunwomoju; he was actually an illegal immigrant and this was not
his real name. When R was discovered and deported, P sought a decree of nullity, and this
was granted. [This first-instance decision has been doubted by commentators: P's mistake was
as to the man's attributes - his name and residential status - rather than his identity, and C v C
above is thought to represent English as well as New Zealand law on the point.]

Valier v Valier (1925) 133 LT 830, Lord Merrivale P ; An Italian P working in England met a
woman R who took a fancy to him. She persuaded him to go through a register office
wedding: P answered some simple questions in English (in which he was not fluent), signed
his name, and gave R a ring which had just been given to him. Only afterwards did P learn
that this was a marriage ceremony, and he subsequently sought an annulment. The judge
granted his petition: there was evidence that an Italian marriage involves much more
formality, and is often preceded by a public betrothal. P's claim that he was mistaken as to the
nature of the ceremony could well be true.

Mehta v Mehta [1945] 2 All ER 690, Barnard J ; A UK resident W went through a ceremony
with H, an Indian, in Bombay. The ceremony was conducted in Hindi, and W thought its
purpose was to receive her into the Hindu faith; she learned afterwards that it was also a
marriage ceremony. The court granted a decree of nullity: W had not truly given her consent
to any such marriage.

Way v Way [1949] 2 All ER 959, Hodson J ; An Army officer H married a Russian woman W
in the Soviet Union, but the marriage was never consummated and W returned to her own
home and career immediately after the ceremony. H petitioned for a decree of nullity, arguing
that he had been mistaken as to the effects of the marriage: he had believed that a married
couple would have a duty under Soviet law to live together, that he would be allowed to visit
W in her home, and/or that W would be allowed to leave the Soviet Union with him. The
judge granted a decree on the alternative ground of W's wilful refusal to consummate the
marriage, but said there was no authority for granting an annullment on the basis of mistakes
such as these. Only a mistake as to the identity of the person with whom the marriage is
contracted, or as to the essential nature of the ceremony, is sufficient.

Vervaeke v Smith [1982] 2 All ER 144, HL ; A Briton H and a Belgian prostitute W went
through a marriage ceremony, the sole purpose of which was to secure British citizenship for
W and thereby protect her from deportation. H received �50 and a ticket to South Africa,
and the couple never lived together. Some 16 years later, W married M in Italy, and when M
died almost immediately afterwards leaving substantial property in England, W claimed the
property as M's widow. The House of Lords, affirming the courts below and refusing to
recognise a Belgian decree of nullity for the "mock marriage", said W's marriage to H was
valid: the parties knew they were marrying, and their motives for doing so (and their
understanding of the consequences) were irrelevant. W's "marriage" to M was thus bigamous
and void, and she was not entitled to the property.

R v. Algar
A voidable marriage was regarded as valid and subsisting until it had been avoided
at the instant of the aggrieved party; accordingly a spouse who had been validly
married but who had subsequently obtained a decree of nullity on the ground of the
others impotence was not a competent witness against that other spouse on his or her
trial for a criminal offence (forgery) committed during the marriage.

Approbation of voidable marriages

This occurs in situations where one of the parties is fully aware of facts making the
marriage voidable and conducts himself although she is the innocent one as though
the marriage is valid. She maybe estopped from revoking the marriage and will be
deemed to have waived his or her rights. The innocent party will therefore have a
approbated the marriage by continuing to observe it and the defect will be cured
The conduct amounting to approbation is a matter of court to decide.
In W v W (1952) 1 ALL ER 858 the parties were married in 1941 but attempts by the
husband to consummate the marriage were unsuccessful. In 1945, on the suggestion
of the husband the parties adopted a child and later in 1946 the husband left the wife
and sought to annul the marriage for non-consummation. Court held that the husband
had so approbated the marriage by his initiation of the adoption proceedings.

K (P) v. K
The issue of approbation was discussed and in this case the marriage had never
been consummated due to the husband‘s impotence. The marriage lasted for 14years
and the petitioner thought that the condition would change the court agreed to nullify
the marriage however in Scott v. Scott this view was rejected because the husband
had fully accepted the marriage despite the absence of sexual intercourse, there was a
bar arising from his own conduct.

Scott v. Scott
The marriage had not been consummated but prior to the marriage ceremony; the
woman had told the man that she had distaste for sex, but he agreed to marry her
hoping to change her without success, he eventually decided to remarry and applied
for nullification on the basis of non consummation.
Held, a decree of nullity was refused because the husband had fully accepted the
marriage despite the absence of sexual intercourse, there was a bar arising from his
own conduct.

Morgan v. Morgan
The husband petitioned the court on the ground of his own impotence contrary to
the agreement before marriage that the parties were marrying for companionship and
nothing else.
Held, the husband was not entitled to a decree of nullity on the ground of his
impotence because having regard to the companionship agreement and the age of the
parties when marriage took place, it would be contrary to justice and public policy to
allow the husband to plead his own impotence and mental reservations could not in
English law invalidate a marriage that was duly celebrated, and accordingly the
marriage was valid notwithstanding the companionship agreement.

In Harthan v. Harthan (1948) 2 All E.R

The husband sought a declaration of nullity on a claim of his own impotence and
claimed that in their 20 years marriage he had been unable to engage in any sexual
intercourse and the court declined to grant him the decree citing this doctrine of
approbation.

D v D (nullity) [1979] 3 All ER 337, Dunn J ; H and W were married, but the
marriage was never consummated because W had a physical impediment to
consummation and refused to undergo surgery to correct it. Ten years later, after the
couple had adopted two children, H left to live with another woman and petitioned for
nullity on the grounds of inability or refusal to consummate. W withdrew her
objections before trial, but the judge considered whether the petition was barred by
H's acceptance of the situation. Allowing the petition, he said approbation alone was
no longer enough: the statutory bar required both the petitioner's conduct and injustice
to the respondent. In the instant case, there the respondent made no objection and so
clearly would not suffer injustice if the decree were granted.

Under section 13 of the Divorce Act, the issue of children gotten before nullification
is dealt with. It provides that “Where a marriage is annulled on the ground that a
former husband or wife was living, and it is found that the subsequent marriage was
contracted in good faith and with the full belief of the parties that the former husband
or wife was dead, or where a marriage is annulled on the ground of insanity, children
begotten before the decree nisi is made shall be specified in the decree, and shall be
entitled to succeed in the same manner as legitimate children to the estate of the
parent who at the time of the marriage was competent to contract.”

LEGAL EFFECTS OF MARRIAGE

The effects of the marriage cut across the different types of marriages already looked
at. The legal effects of marriage are as follows;

1. The parties acquire the status of being married. A person who gets married
under the marriage act becomes incapable of contracting another marriage
during the subsistence of this marriage and also if one has sexual intercourse
outside the marriage one commits adultery. Basing on Hyde v. Hyde, marriage
is monogamous and during its subsistence one can not purport to enter another
relationship

2. The legal fiction of one person. At common law one of the principles of
marriage was that when parties get married the personality of husband and
wife were fused into one hence there could be no civil action between the
spouses for they were one. Similarly, spouses could not be jointly
charged.
According to Blackstone, writing in about 1765, the husband and wife were one
person in law: the legal existence of the woman was suspended and incorporated
into the personality of her husband. She could not make a contract except as her
husband's agent, and although she could commit torts her husband remained
jointly liable. A husband could not make a legal gift to his wife, nor enter into a
contract with her; however, he could leave property to her in his will, because that
would not take effect until after the marriage was ended by his death. The husband
was responsible for his wife's debts, whether contracted during the marriage or
before, and if she committed any crime in his presence it was presumed that she
did so under his direction. As late as 1840, Coleridge J in Re Cochrane 8 Dow PC
630 said there could be no doubt that "the husband hath by law power and
dominion over his wife and may keep her by force within the bounds of duty, and
may beat her, but not in a violent or cruel manner".
According to Balfour v. Balfour, a domestic arrangement can‘t be taken as a
binding contract

See. Laila Jhina Mawji & Anor vs the Queen [1956] 23 EACA 609 wh
Sesawo vs Ug [1972] HCB 154

This legal fiction or fusion was a reality which subsequently led to harsh resultys
especially in regard to women‘s property rights. Today this aspect in not very
important as spouses can act very independently and even sue each other. The law
has changed since then, largely due to the growing recognition that women
(included married women) are individuals with minds and rights of their own.
Husbands no longer have disciplinary rights over their wives, and husbands and
 wives are separate legal persons who can make contracts with one another, sue
one another, commit crimes against one another, and so on

See: R vs Clark [1949]2 ER 448,

Ramsey vs Magret [1894] 4 QB 18
In Uganda v. Chanda, 1977 HCB 11, a married woman could own property
separately from her husband and could sue him over her property.
In Moonlight Sengooba v. Administrator General, the woman was allowed to inherit
insurance benefits arising out of a policy taken out by her husband. The position of
one party is also apparent in rules of evidence as depicted in Uganda v. Kato, where a
woman gave evidence against a man she was cohabiting with. In practise a spouse is
not a compellable witness in criminal cases.

3.The rights of the wife to use the husband name. A marriage gives the wife the
right to use the husband‘s name if she so wishes but this is not obligatory. It was thus
stated in Fendal v. Goldsmith, while marriage confers a right to the wife to use her
husbands name, she can not be forced to do so but if she desires she can use it.
In this case the parties obtained a decree absolute and then remarried. The woman
used the husbands name for the publication of banns. She later wanted to use this for
the nullification of the marriage.
The case made a composition that while marriage offered to a wife the right to her
husband‘s name she is under no duty to do so. However if she wishes, she may adopt
it without swearing a deed pool. Marriage confers a name upon a woman which
becomes her actual name and that she can only obtain another by reputation.

A woman may also retain he former husband name after termination of the marriage
and the husband has no right to restrain her from using it unless she is using it for a
fraudulent purpose.

See; Cowley vs Cowley [1900] P 305

Here the wife succeeded in a decree of dissolution of the marriage but went on to use
the husbands name. The husband sued for an injunction restraining the wife from the
continued use of his name. Court held inter alia that a man has no such property in his
name as to entitle him to prevent a woman not his wife claiming to be such unless she
does so maliciously.

A wife commonly takes her husband's surname when she marries, though a number of
women nowadays retain their own surname for professional purposes and a few do so
in private life as well
Davies v Lowndes (1835) 131 ER 1247, CP
A testator T left much of his property to D on condition that D change his name to
Selby. T's relations brought an action against D, arguing inter alia that he had not
properly changed his name and was not entitled to the property. Tindal CJ said there
was no need for any special formality for a man to change his name: a man may, if he
pleases, and it is not for any fraudulent purpose, take a name and work his way in the
world with his new name as best he can.

D v B (Child: surname) [1979] 1 All ER 92, CA

A pregnant woman left her husband and went to live with another man; she executed
a deed poll adopting his surname for herself and any child of hers. When the child
was born she registered its birth under the new surname B, but declared D to be the
natural father. Following the divorce a year later, D sought and was granted a court
order requiring inter alia that the child be known by his surname rather than B's.
Allowing the mother's appeal, Ormrod LJ said it was in the child's best interests that it
should be known by the surname of the family unit to which it belonged. Obiter, he
referred to the convention that a married woman takes her husband's surname, but
stressed that it was no more than that.

4. The wife acquires the domicile of her husband. The wife acquires the domicile
of the husband as depicted in Joy Kigundu v. Aggrey Awori, the court observed that
during the lifetime of the husband, the wife can not acquire domicile of her own from
that of her husband because the domicile of a married woman depends on her
husband‘s domicile and since her husbands domicile was in Kenya her domicile also
was in Kenya and therefore she could not sustain divorce proceedings.

5. Presumption of legitimacy of children. All children born during a

subsisting marriage, will be presumed to have been fathered by the husband however,
this presumption can be rebutted if one shows overwhelming evidence to the contrary
in the following circumstances.
a) Where a husband was temporarily or permanently impotent at the time of the
conception.
b) Absence of the husband for a reasonably long time. Preston Jones Vs
Preston Jones [1956] 1 All ER 124

In Preston Jones case where the husband had put it clearly that a child born 360 days
after a particular coitus wasn‘t his legitimate child and his appeal was allowed.

Where it can be shown that the child was born after an abnormally long period of time
between the parties. For children born after a decree of divorces, there is a
presumption that conceptions took place during the subsistence of the marriage and
the husband is the father of the child but this presumption can be rebutted.

In Knowles vs Knowles [1961] 161, [1962] IALL ER

The child was born after a decree was made absolute. According to evidence a decree,
the child could have been conceived before the decree was made absolute because the
husband and wife continued to have sexual intercourse ever after the decree nisi.

The court held that in view of the fact that the “A decree nisi does not hinder
cohabitation, but rather tends to promote it. Husband had access to his wife and
the time the child was conceived, it presumption of legitimacy operated in favour of
presuming that conception took place while marriage was still subsisting and the
husband was the father of the child.

Re Over bury [1955] CH 122 Here a child was born during the subsistence of a
marriage which was terminated by the husband‘s death but the mother was already in
a new marriage.

After the death of the child an application was lodged to determine the child‘s
paternity it was lodged to determine the child‘s paternity. It was held that there was no
evidence that the mother had committed adultery during the first marriage and so the
child belonged to the first husband.

c) If it is shown that intercourse was so unlikely that it would be concluded on a

balance of probabilities that no intercourse took place.
d) Where it is shown that the wife is adulterous but this does not per se rebut the
presumption but only shows who the father may be.
e) Where it is shown that the wife was pregnant at the time at the time of the
marriage and the husband had not had sex with her.
No presumption arises where a child is conceived when the husband and wife are
judicially separated but this rule does not apply where they simply entered into a
separation agreement (this is where the husband and wife agree to separate and
sign a separation agreement without first going to court.)?

See; Ettenfield vs Ettenfield [1740] I ALL ER 293

The husband separated with the wife under a separation deed/ Agreement. They
continued living in the same town and during the separation the woman became
pregnant and subsequently gave birth and then asserted that the matrimonial
relationship had been resumed in Aug 1932 which the husband denied.
In Uganda The law does not make a distinction between legitimate and
illegitimate children when it comes to inheritance. Therefore in Kajubi v. Kabali,
 although there was no valid marriage, the children were entitled to inherit from
their deceased father

6. The right to consortium or conjugal rights

The right to consortium – a consortium is the right to the company society and
affection of a spouse in any matrimonial relationship. Under the old common law
rules it was the husband who had a right to the wife‘s consortium but the wife had no
such right to her husband‘s consortium. What she had was a duty to offer her
companionship and services to the husband. Under the old common law rules the
husband also had the right to chastise his wife if she failed in her duties including
confining her within the house.
As late as 1840, Coleridge J in Re Cochrane 8 Dow PC 630 said there could be no
doubt that "the husband hath by law power and dominion over his wife and may keep
her by force within the bounds of duty, and may beat her, but not in a violent or cruel
manner".
Consortium refers to living together or a bundle of rights which arises or accrues to
the husband or wife and all other incidences that flow from the relationship. Some of
the rights may be precisely depend while other may not. Consortium embraces the
right to companionship, love, comfort, mutual services, sexual intercourse, affections
etc..
However, the enjoyment of these rights may be qualified depending on the
circumstances, that is, the rights are not absolute.

In Aremezi vs Rideway [1949] ALL ER 664 it was stated by Hilburg J. that;

“I am quite sure that no young woman when she accepts a proposal of
marriage and a contract is formed could be satisfied if she were told that all
the Youngman is undertaking by promise is to go through a form of ceremony
with her. What the parties intend is an exchange of mutual promises to
becomes a another’s spouse that is husband and wife and all that it should
entail”.

Place vs Scarle [1932] 2 ALL ER 497, court held that both husband and wife have a
right to consortium and a right to each other and each of them has a right against any
person who abuses that right without noble cause.

The right may depend on age, health, social and financial standing of the parties
 Margan vs Morgan 91959). All GR 53) where court held that an elderly had
married only for companionship.
 Scott vs Scott
 A.B vs C.D (1955) 28 K.L.R 210 the wife was complaining of severe pains
during sex, but the husband persisted. It was held that spouses should not use
 force in order to exercise their and Conjugal rights. The use of extra judicial
means in exercising conjugal rights is prohibited.

6. The right to live together.`

While the parties have a right to live together, it is not mandatory that they live
together at all times.

In circumstances of living apart, they must share the intention of being married. The
spouses cannot contract themselves out of this duty for such agreements are
considered to be outside public policy and therefore not enforceable. Brodie vs
Brodie 91917) P 27.

A spouse cannot however, be compelled against her/his will to stay with the husband
or wife or to resume cohabitations
R v Jackson [1891] 1 QB 671, CA

A wife W left her husband H for another man; H kidnapped W as she was leaving
church and took her home. Reversing the Divisional Court, the Court of Appeal
overruled Cochrane and granted habeas corpus, saying H had no right to detain W
against her will. If a husband ever had the legal right to beat his wife, said Lord
Halsbury LC obiter, that entitlement was now obsolete.

Both parties have a right to consortium and both can sue anyone who destroys this
right. In Kremezi v Ridgway, while in Greece, an English naval officer entered into a
contract of marriage with a Greek girl, resident in Athens. Later the contract was
renewed in England, with the intention that the new contract should be in substitution
for the previous one. The marriage was to take place in Athens but the parties
intended to make their matrimonial home in England. In an action for breach of
promise of marriage:
Per Hilbery J: while it is true that this peculiar type of contract—the exchange of
mutual promises to marry—ends, so far as legal enforcement is concerned, on the
performance of the marriage ceremony, none the less the performance which the
parties contemplated at the time they exchange mutual promises is not exhausted by
the performance of a mere ceremony. No young woman when she accepts a proposal
of marriage and a contract is formed, would be satisfied if she were told that all the
young man is undertaking by the promise is to go through a form or a ceremony with
her. What the parties intend is an exchange of mutual promises to become one
another’s spouses—to become husband and wife with all that that should entail.

In Newton v. Handy, it was held that a married woman has a right to consortium from
the husband and can recover damages from anyone who violates this.

Section 20 of Divorce Act envisages restitution of conjugal rights. It thus provides

that if the husband or wife without reasonable excuse withdraws from the society of
the other, the aggrieved party may petition the court for restitution of conjugal rights.
However it is important to note that a court can not order specific performance
apparently because you can‘t supervise people having sex or coerce them into the
same.
If there is a reasonable excuse as to why a party has left then the court can order
separation. In R v. Jackson, the husband got a decree of restitution of conjugal rights
and the wife refused to comply so he abducted her, the state set out her case to secure
her release and the court held that the husband could not keep her in confinement
against her will.

Each partner has a right to reasonable sexual intercourse with the other: this does
not entitle a husband (or a wife) to have intercourse by force, but unreasonable refusal
(or demands unreasonable in their frequency or nature) could well be grounds for
annulment or divorce.
Brodie v Brodie [1917] P 271, Horridge J

W petitioned for an order for restitution of her conjugal rights (an action no longer
available since 1970). In reply, H pled an agreement made before the marriage (which
had taken place only because W was already pregnant by H) that the parties would
permanently live apart. The judge, granting W the order she sought, said such an
agreement was contrary to public policy and could not be a defence.

R v R (Rape: marital exemption) [1991] 4 All ER 481, Times 24/10/91, HL

D and his wife were living apart, but not divorced; the wife had returned to her
parents' home. D forced his way into the house and then forced his wife to have sex
with him. His conviction for rape was upheld by the Court of Appeal and the House
of Lords. The status of women (and particularly of married women) has changed
beyond all recognition since Hale's proposition was first enunciated, said Lord Keith,
and in modern times any reasonable person must regard that proposition as quite
unacceptable. The supposed marital exception in rape forms no part of the law of
England today.

However, the aggrieved party has a right to apply to court for restitution of conjugal
rights. This is also provided for under see 20 of the Divorce Act, when the spouse has
unreasonable withdrawn.

The withdrawal of conjugal rights must be unreasonable and the other party must
have no defence.
Powell vs Powell.
Where a husband moved to the self contained part of the house and denied his wife
access thereto. The parties were still under the same roof but the husband avoided the
wife‘s society and their only meetings were the morning greeting.
Court ordered for the restitutions of the conjugal rights on the wife‘s application. The
successful.

The successful party is not entitled to use extra judicial means of to enforce his /her
rights R vs Jackson, (1896) 1 QR 671, where a husband obtained the decree nisi for
restitution of conjugal rights and his wife refused to comply. He then ducted her and
confirmed her in a house. Court held that not withstanding her refusal to live in the
same house as him the husband was not entitled to keep her in confinement for the
purpose of enforcing the decree for restitution by her of his conjugal rights. Court
granted her an order for habeaus corpus to secure her release.

Nanda vs Nanda (1967) ALL ER 401 hence the wife whose husband had deleted her
obtained a decree for restitution of conjugal rights and she later went to live against
his will in a flat in which he was living with another woman, with their two children.

Court held that she had no right to trespass on her husband‘s property which wasn‘t
their matrimonial home and she was entitled to an injunction to restrain her .

If a party refused to return, then he/she will be held to be in description which may
constitute a ground for judicial separation for divorce.
R vs Reid 91973) ALL ER 1350
Orme vs Orme 162 ER 335.

There are certain circumstances where conjugal rights or rights to consortium may be
lost or suspended and these are:
i. Where there in judicial separation i.e where court has issued an order for
the parties to live separately.
ii. If there is a separation agreement where parties have agreed to live
separately and the agreement contains a non molestation clause.
iii. Where one of the parties has committed a matrimonial offence e.g
adultery, and desertion. The guilty party will be deprived of the
consortium of the other.
iv. Where courts have pronounced a decree nsi
There is a cause of action, against anyone who unlawfully interferes with the spouse
right to consortium and these can be in 3 categories.

1. Where a person entices the spouse to leave the marriage without any legal
justification. At common law this would give a ground for an action in
enticement.
In Place vs Searle (1932) ALL ER K.B 497 where right to consortium of his wife
and vice versa and each has a cause of action against the third party who without
justification destroys that consortium.

Newton vs Handy (1933) 1 49 LT 165 when court held that a married woman has a
right to consortium her husband and can recover damages from any one who violates
that right. However, for her to do so, she has to prove that the co-defendant enticed
her husband and persuaded him to stop cohabiting with her.
Therefore for an action of enticement to be maintainable, the following aspects must
exist.

i. The plaintiff must prove the intention by the defendant to induce the other
party to spouse go away.
ii. The defendant must have known that the enticed party was married.
iii. The plaintiff must prove that the defendant‘s action were the must prove
that the defendant‘s action were the cause of the break up of the
relationship. Smith vs kay (1904) 20 P.L.R 261
NB: Enticement can occur ever without adultery. Just keeping away the other spouse
from the matrimonial home amounts to enticement.

2. Action against in laws or relationship who may interfere with the married
couple. In Gottlieb vs Gleiser where the husband proceeded against his
mother and father in-law for enticing his wife. The court held that the was no
action against in laws for enticement it unless one can proved express malice
to breakup the marriage.
3. Negligent acts of third parties. In a situation where parties are happily
married and a third party cause temporary of permanent injury that impairs
the party‘s ability to consortium an action for damages will i.e

The neighbour principle in Donoghue vs Stevenson. Right to recover damages

Best Vs Samuel and Anor (1952) 2 ALL ER 394.
Here the husband was involved in an accident that rendered him incapable of
performing sexual intercourse hence the wife‘s health deteriorated, and she sued the
defendant who caused the accident for loss of her husband consortium, arguing that
she had been denied to have more children and happy mortal life.
However, her claim failed.
Mller vs Sterlin

Amos Seyankanza vs aG (1984) HCB 48, the husband sued for damages for the loss
of his wife who had been knocked down by a government car.
Court held that a spouse may recover damages from any one who does something to
his/her partner which deprives him/her of the others society and services and that the
plaintiff could recover damages . However court refused the husband‘s claim on
behalf of the children for the loss of their mother‘s consortium.
Meneil vs Johnstone (1958) ALL ER 16

*Consortium also includes the right to sexual intercourse. There is a duty to the
parties to consummate the marriage, and failure (inability or refusal) to do so entitles
the other party to have the marriage annulled unless it can be proved or shown that the
marriage was approbated. It follows from this that there is a mutual right to sexual
intercourse which continues after the consummation of the marriage.

Under common law, it is presumed that consent to sexual intercourse was given at the
time of the marriage. a question arises to whether this right in absolute. This has
raised the question or the controversial issue on marital rape
R vs Clarke (1949) 2 ALL ER 448
R vs Steal
R vs R
In R vs Miller (1954) OB282, court stated that while the husband was not guilty of
rape, he could be convicted of assault if he insisted to have intercourse with his wife
against her will.

7. THE RIGHT TO MAINTENANCE

There is no statutory provision relating to the duty and a right to maintenance of
spouses, however, under common law the husband has to duty to maintain his wife.
In practice the wife‘s right to maintenance depends on the husband‘s continued
enjoyment of conjugal rights.

The right to maintenance includes the right to a house and to be provided with
recesses, of like. The husband has a duly to provide his wife with a matrimonial home
and the wife, has no right to insist on any particular home.
Both spouses have a duty to cohabit together in their matrimonial home, however the
decision as to where that matrimonial home will be cannot be specifically made by a
specific spouse and it has to be a joint decision and this was the ruling in Dunn v.
Dunn (1949)98 in this case the husband petitioned for divorce on the ground of
desertion alleging that when he had returned from working overseas (he was a sailor)
he had requested his wife to go and live with him at a sea port where he was stationed
and that she had refused and persisted in her refusal for his request. His argument
was that the husband has the right to decide where the spouses should live and that by
refusing to join him she was therefore guilty of desertion. It was held that it is not a
proposition of law, it is not the law that a husband has the right to say where the
matrimonial home should be. It is simply a matter of ordinary good sense arising
from the fact that the husband is usually the wage earner and has to live near his place
of work. It is the duty of the spouses to should be. Therefore the wife was not guilty
of desertion in this particular case. The court is saying that it is not the law that the
husband should decide where they are going to live.
Ferris v. Weaven, [1952] 2 All ER 233
A husband, after deserting his wife, sent her a letter in which he said: ―I will carry
on paying on the house [the matrimonial home] providing you do not annoy me. If
you come here, I will not pay another penny, and don‘t forget you have my house of
furniture.‖ The wife continued to reside in the house and the husband paid the rates
and certain mortgage instalments in respect of it. After ten years the husband sold the
house for £30 to a purchaser who bought it with full notice of the arrangement
between the husband and the wife and of the fact that that arrangement had been, and
was being, acted on, and with the intention of enabling the husband to defeat any right
which the wife had as a result of that arrangement. In an action by the purchaser for
possession of the house,
Held – The wife was a licensee with a contractual right to remain in the house as a
result of the arrangement with her husband, and in the circumstances the purchaser
was not entitled to recover possession of the house because he had acted in bad faith.

Although this right existed these was no legal requirement that a husband and wife
should live under the same roof. That the spouses have a duty to live together in so far
as conditions permit.

However, they cannot contract themselves out of this duty to live together as
considered in the case of Brodie vs Brodie (1917) P 271.
Where an agreement was made before marriage that the parties will at all materials
Times after marriage live separately apart. It was held to be against public policy and
such as agreement was in decree to a petition to restitution of conjugal rights by a
spouse.
Stewart v Stewart [1947] 2 All ER 813
On an application by a husband for possession of the matrimonial home the county
court judge found as a fact that the husband was the tenant of the premises.
There was evidence that the parties had not cohabited for a considerable period, that
they were making counter accusations against each other, and that the husband had
filed a petition for divorce on the ground of the wife‘s adultery. The judge made an
order for possession within two months, which might have resulted in the wife being
ejected from the matrimonial home, and refused to make that order conditional on the
husband providing accommodation elsewhere for the wife. On appeal it was held that
the county judge had properly exercised his discretion. Court granted this application
holding Interlia that the right of one spousein regard to the matrimonial have to
depend the circumstances of case. In this particular case where at least the wife was at
fault it could be unreasonable to insist on the wife remaining in cohabitation with the
husband

Edith Nakiyingi Vs Meleki Zadeki (1978) HCB 107.

Kintu Vs Kintu (supra)
The wife has a right to occupy the matrimonial home and be provided with
necessaries of life and where this isn‘t done, the wife can exercise what under
common law is called the Descerted wife’s Equity, which means that the wife may
insist on remaining in the matrimonial home if she has been deserted by the husband.

The nature of the right.

The question here is whether the wife‘s right to maintenance and living in the
matrimonial home overrides the rights of the husband‘s creditors. In otherwords, does
the wife have a superior right over third parties?

This right isn‘t absolute and a wife may not exercise it against people who have better
claims on the matrimonial home e.g banks for the right to the matrimonial home is a
person right which is enforceable against the husband and not against the whole
world.

This was illustrated in National Provincial Bank Vs Ainsworth (1962) 2 ALL ER 472
where the husband deserted his wife and left her in the matrimonial home and then he
conveyed the house to a company in which he had control interest which in turn
mortgaged it to a bank for a loan.

The bank sought to have possession of the property and the wife contested this on the
grounds of her right to occupy the wife house under the Deserted Wife‘s equity. The
court ruled that the rights of the wife were against the husband and she did not have
the rights to override the Bank‘s interest and therefore the bank was entitled to
possession. the wife had no right in matrimonial home, she was a mere licensee of the
husband, she had equity enforceable only against the husband and not third parties. It
was also decided that the wife should be moved out of the house if the bank acted
genuinely and in good faith.

In Uganda today, this right is dealt with under sec 39 of the Land Act which prohibits
any dealings in land where the family ordinarily resides or where the family revives
livelihood unless there is express consent of the wife and the children.

However, if third parties had fraudulent intentions, or were not bonafide in their
dealings with the husband regarding the matrimonial home, then the wife‘s right to
obtain the same would be upheld.

When does a wife‘s right to maintenance cease

 1. Where the wife is adulterous. In this case the husband is no longer obligated to
maintain her. It must be adultery which the husband has not encourages by
way if connivance, collusion or condonation sec 7).

2. Desertion of the wife. If the wife leaves the matrimonial home without
reasonable excuse and without the intention of returning. William Vs William
(1957), ALL ER 305.

3. Death of the wife. Jenkins Vs Tucke (1788) HB L 91, when court held that the
husband was liable for the funeral expenses of his wife. Rees vs Highes
(1946), KB 517

Under common law the husband is liable for burial expenses even if the wife died in
desertion. However it is important to note that where the wife leaves an estate
sufficient to pay her expenses for burial the husband is not liable for the same.
On the same note it is trite law to argue that if the husband dies first, the executors of
his estate have no duty to maintain the wife. Therefore in Langstone v Hayes [1946] 1
All ER 114
By a separation deed which recited that the parties had agreed to live separately and
apart, the husband covenanted to pay the wife ―for her separate use and for the
maintenance and support of herself a clear annuity of £104 payable by weekly
payments of £2 each until determined. On the husband‘s death, his executor
discontinued the weekly payments. The wife brought an action against the executor.
Held, there was no general rule of law that a covenant in a separation deed was
intended to bind the estate of the covenantor; whether such an obligation was intended
depended on the terms of the particular contract. In the present case, the obligation to
pay the annuity did not pass to the executor, since the husband‘s covenant could not
be construed as intended to continue after his death.

Obiter, in Tanzania there is dual obligation. If the wife is financially stable she can be
ordered to pay expenses when the husband is sick, impaired, imprisoned or advanced
in age.

How can a wife enforce maintenance?

a. Enforcing her right of agency of necessity.

It arises in a situation where the husband fails to provide for his wife necessaries. The
wife is allowed to pledge or take goods on credit for a trader and the trade will be able
to sue the husband for the credit for the wife is treated as an agent for the husband

In Callot v. Nash, it was stated that necessaries are articles that are reasonably needed
and in the style of living set by the husband. In this case a firm supplied dresses for
the wife that was not paid for and the firm sued the husband on agency. The husband
argued that the wife had her private means.
Held, the existence of the private means of the wife while relevant, it did not
exonerate the husband from paying the bills.

The decision in Callot v. Nash was overruled in a later case and is it stands is a bad
law. This was captioned in Biberfeld v. Berens, A wife, who was compelled to leave
her husband by reason of his cruelty, borrowed money from the plaintiff for the
purchase of necessaries. The wife possessed savings certificates worth £1,125, a
balance of £37 at her bank, a co-operative society‘s dividend of £7 5s 9d, and
jewellery worth £250. The plaintiff sued the husband for repayment of the money lent
on the ground that the wife had borrowed it as the husband‘s agent of necessity.
Held – In considering whether a wife, who has been compelled by her husband‘s
conduct to leave him, is her husband‘s agent of necessity, regard must be had to her
means; in the present case the wife had assets which she could have been reasonably
expected to use to pay for necessaries; and, accordingly, she was not her husband‘s
agent of necessity and the plaintiff‘s claim failed.

In Nanyuki Trading stores v. Peterson

The wife had purchased some liquor which the husband refused to pay for, the
husband argued that the wife was acting otherwise other than agent of necessity.
Issue, whether liquor is a necessity?
Held, it must be considered if the amount of liquor is of an extent that might be
reasonably expected by a person in the husband‘s state of life.

Conditions necessary for a trader to move against the husband

 It must be proved that the husband refused to supply the wife with the
necessaries of life.
 The husband must still have the right to maintain the wife.
 The wife cannot exercise agency of necessity for items which are not
necessaries of life.
 The husband must not have prevented the wife from exercising agency of
necessity.
 The trader must show that she gave the goods of the agent of the husband and
not on the wife‘s right. This applies to goods and not money.
 The trader must prove that the husband did not expressly terminate this right.
 Legal expenses of the wife can also be treated as necessaries of life.

b. Through a bilateral maintenance agreement.

Spouses if living in separation may include a clause in their separation agreement of
maintenance and this agreement must be enforceable.
In Williams v. Williams, a wife left her husband and the husband promised to make
her weekly payment for her maintenance. He failed in this and the wife claimed the
arrears. The husband claimed that she had deserted and she could maintain herself.
Lord Denning MR held, a promise to perform an existing duty is sufficient
consideration to support a promise, so long as there is nothing in the transaction
which is contrary to public interest.

c. Maintenance order from court.

In Uganda statutory law does not create a right of a wife to seek maintenance order
where the marriage is still ongoing. However Article 139 of the constitution,
Judicature Act Cap 13 section 14, Civil Procedure Act Cap 71 section 98 and
Magistrate Courts Act Cap 16 section 10 provides courts with jurisdiction to hear
family law cases. They may apply doctrines of common law and equity in ensuring
there is maintenance between the husband and the wife.

Johnstone v. Johnstone 1960 E.A. 607

Power to hear matrimonial order

…………………………………….. [1964] 1 WLR 1433

A husband had left his wife and was living with a rich woman and had new
additional income to be taken into account when issuing maintenance order.
Held, where a party has failed to make full disclosure of income, property and other
resources, court is entitled to draw inferences against him.
In Stringer v Stringer [1952] 1 All ER 373
The husband and wife parted by mutual consent in November, 1946, and from that
date the husband had not paid the wife any maintenance nor had she demanded any
maintenance until 17 July 1951, when she issued a summons for wilful neglect to
maintain.
Held – Proof of a consensual separation of spouses without any agreement by the
parties regarding the maintenance of the wife is sufficient to rebut the common law
presumption that a husband is liable to maintain his wife.

d. Auxiliary relief.
Section 23 of Divorce Act Cap 249 gives the court power where proceedings have
been filed to provide Alimony pendente lite. The court may award alimony not
exceeding 1/5 (a fifth) of a husbands income. Section 24 provides that on permanent
dissolution, the court may order the husband to secure to the wife such amount of
money as it may deem reasonable. If she doesn‘t trust the husband the court may
receive on her behalf.
In Tanzania, a wife has a duty to maintain if her husbands earning is impaired. On
the other hand in England the party more capable of maintaining is responsible.
However it is important to note that the issue of res judicata may apply since the wife
cannot apply for revision of the sum awarded as a result of economic change.

8. THE RIGHT TO MATRIMONIAL CONFIDENCE.

This is to protect spouses form disclosing matters which come to their knowledge as a
result of a marriage relationship. In the law evidence the husband and wife are
competent but not compellable witness in criminal matters.

Married couples have an obligation of confidentiality towards one another, and either
can be restrained by injunction from revealing to a third party anything learned from
the other in the course of married life.

Argyll v Argyll [1965] 1 All ER 611, Ungoed-Thomas J

The Duke of Argyll divorced his wife W on the grounds of W's adultery; W did not
contest the divorce, on the understanding that nothing more would be said about the
adultery. The Duke subsequently sold stories to the newspapers giving intimate details
of that and other aspects of W's private life, and W sought injunctions prohibiting
publication. The judge granted the injunctions sought: not only was disclosure
contrary to the undertakings that had been given earlier, but it was a breach of the
confidence presumed to exist between husband and wife
Ug Vs Kato (1976) HCB 304
Sesawo Vs Ug (1972) HCB 120

The general rule is that many of these legal effects arise in all types of marriages e.g
both Islamic and customary marriages recognize the status of being marriaed as seen
in Alai Vs Uganda, the presumption of legitimacy of children is well traced under
both customary and Islamic marriages.

Mayambala Vs Mayambala Divorce Petitions No 3 of 1993

Ismat Vs Ismat Divorce casue No 1097 of 1998.
Kironde Vs Kironde No 6 of 2001
Mutalemwa Angelina Vs Mutalemwa Felix (1978) LRT 854
Barret Vs Barret (1961) EA 503
Kintu Vs Kintu Divorce cause No 135/97

9. MARITAL PROPERTY
Property may have different dimensions. At common law, it was presumed that all
property in the matrimonial home belonged to the husband. This presumption was
discussed in the case of Lailai Ghinamouze Vs The Queen (1956) 23 EACA 609,
where court said that all charter in the matrimonial home are naturally presumed to be
the property of the husband.
Mawji v. R
There is a natural presumption in absence of evidence to the contrary that property in
a matrimonial home is that of a husband
However, this presumption can be rebutted by adducing evidence to prove otherwise.
(Branley’s Family Law).

Today the law generally allows husband and wife to own property separately,
property in marriage may have different dimensions and various issues may arise
from these different dimensions.

There is property that can be acquired jointly by the spouses and for joint use while
others may be used separately. It may also be property separately bought by the
spouses and the other has no interest in it.

Further it may include property in which the title is vested in one party but the other
carries out improvements on that property. Its these various dimensions of property
that have given rise to the various issues particularly on how such property may be
shared in the event of separation or divorce.

Originally women had only usurfactory rights to property i.e they could not own
property in their own right but only used them and the courts were very strict against
women in claims over marital property. Even in cases where it was clear that property
vested in the woman, it was very easy for the women, it was very easy for the woman
to forge it such property. This position is stipulated in sec 26, 27 and 28 of the
Divorce Act.
Sec 26, states that when a decree of dissolution of marriage or judicial separation is
pronounced on account of adultery by the wife and the wife is entitles to any property
the court may not withstanding the existence of the disability of overture, order the
whole or nay part of the property to be settled for the benefit of the husband or for the
children of the marriage or both. Sec Uganda Association of Women Lawyers Vs
A.G Constitutional Petition No 3 of 2004.

There is however no similar provision to sec 26 in the Divorce Act with regard to
man.

The legal position that women cannot own property in their own right has changed
today and they can now acquire property independently regardless of their marital
status.

Art 26 of the constitution stipulates that every person has a right to own property
either individually or in association with others.
The right was upheld in Uganda Vs Jeninah Kyanda (1977) HCB, where the high
court recognized that a woman regardless of her marital status can own property in
her own right.
Weeding the millet field Pg 43 Okumu Wengi.

In Moolight Ssengooba Vs A.G, the courts held that the English Married Women‘s
Property Act of 1882, which allowed women to own property in their own right was
applicable to Uganda.
See the provisions of the Land Act on women ownership of property Sec 27

Several issues have arisen with regard to property, vested in one party but another
party carries out some improvement on it either by cash payment or by work done on
that property. These issues have arises mostly with regard to matrimonial homes. The
question is normally of such improvements which are carried out give rise to any
interest in the property to the party undertaking them.

The question may however depend on the substitutability of the improvement that
have been made. In a number of case, the principle is that interest may be acquired by
the party carrying out the improvements of such improvements are substancial in
nature.
In Petitt Vs Pettit (1969)2 ALL ER 385, the wife bought the matrimonial home and
registered it in her names. As a result of doing some work on the property, he claimed
he had improved the property value by over £1000. most of the work done by the
husband consisted of redecorating the bungalow, making a garden, a wall and some
work outside the home. No agreement as to his right was made.
The two subsequently separated;
The issue before the court was whether the husband had acquired some interest in the
property.
The H.O.L held that had acquired nothing and he could claim nothing on the grounds
that he could acquire nothing by doing work of an ephemeral / non substance nature,
because what he did was ―do it yourself job which any husband could be expected
to do in his leisure hours”.
In the absence of an agreement to the contrary, one spouse could acquire an interest in
the other‘s property by doing work of a substantial nature on it. This was illustrated in
Re Nicholson (1974) 2 ALL ER 386 where the court held that the installation of a
central heating system for £ 189 in premises worth £600, was a substantial
contribution but the purchase of a gas fire which was less than £20 was not.

In Uganda‘s situation, it was discussed in Edita Nakiyingi Vs Melchizedeki (1978)

HCB 107. the plaintiff and the defendant were married under customary law and the
father of the defendant gave a kibanja to the plaintiff on which the plaintiff and the
defendant erected a house. The wife contributed corrugated iron sheets plus tendering
the kibanja and growing some crops. After the collapse of marriage;
Held, where the matrimonial home is beneficially owned by the husband and the wife
jointly in equity or other shares under trust for sale, neither party was entitled as a
right to expel the other and thus deprive him or her of his/her share. In the
circumstances of the instant case, the kibanja and the house were beneficially owned
by the husband and the wife under a trust for sale having arisen out of the substantial
contribution by the wife towards the development of the kibanja and building of the
house and thus the husband could not exclude the wife from the enjoyment of their
joint endeavours.

The court explained that by merely pending money on another man‘s property it does
not as a general rule give one any proprietary interest there in. however, the doctrine
of equitable estopped subsists, if the owner encourages to expend, he is estopped from
denying his/her proprietary interest so acquired. The courts however emphasized that
as long as he /she made substantial contribution to the property and was encouraged to
do so proprietary interest is acquired. Further, the court stated that where a
matrimonial home is owned and jointly held even though one of the spouses make
substantial improvements or contribution the property is presumed to be owned
together.
The house in this case was owned jointly and beneficiary for trust for sale regardless
of whether she made substantial contribution. Both parties were trustees of the house
and owned equal interests there in. the court did not order the sale of the land and the
house but held that the wife had the right to remain there until she remained or the
husband found her reasonable alternative accommodation.

In Gissingi Vs Gissingi (1970) 2 ALL ER 780 the matrimonial home was bought and
put in the names of the husband. The wife paid for the furniture and household
expenses. The issue was whether or not the wife was entitled to beneficial interest in
the matrimonial home.

It was held that there was no common intention that the wife should have any such
interest in the matrimonial home and their was no express agreement from that effect
hence it was not possible to draw an inference that there was a common intention that
the wife should acquire an interest at the property. The court further noted that where
the contribution is indirect it is difficult to determine how mush was contributed.

Lord Denning made an important dissenting opinion to the effect that where a person
makes a substantial contribution to property, he/she should acquire interests there is
especially women who do a lot indirectly.

The issue of indirect contribution was also applied in Kintu Vs Kintu, where the
issue inter alia was whether the petitioner was entitled to share in the matrimonial
property and in what proportion. The court in respect to this issue held that the
matrimonial home is that property which each spouse should be entitled to and which
the parties choose to call home and which they jointly contribute to.

In Kivuitu vs Kivuitu C/A 26/85, it was held that a wife does contribute to the family
in a thousand other ways including child learning a looking after the family. It can‘t
therefore be said that only monetary contribution should be taken into account.
Any such limitations would clear work an injustice to a large number of women in
our country. Omolo, AJA., found that the wife indirectly contributed towards
payments for household expenses, preparation of food, purchase of children‘s
clothing, organizing children for school and generally enhanced the welfare of the
family and that this amounted to a substantial indirect contribution to the family
income and assets which entitled her to an equal share in the couples‘ joint property.
In England, the law concerning improvements done by one spouse has been modified
in the Matrimonial Proceedings and Property Act of 1972. Sec 37 of the Act suggests
that the contribution towards realty or personality may be in money or money‘s value
if identifiable and substantial the improvements on the property gives the party
interest in it. This is however subject to any agreement on the contrary.

Note that this provision applies to improvements of any property and not merely the
matrimonial home. The contribution may be in money or money‘s worth that is, it
does not matter whether the spouse does the job himself or herself or pays a
contractor. However, one must prove that his/her contribution is identifiable with the
improvements in question.

A general contribution to the family‘s finance such as an indirect contributions to the

family, may give him or her an interest in a home.

Further the provision applies if the contribution made is of a substantial nature, and if
the parties have not entered into an agreement to the contrary.

Mugenzi Teopista v Mugenzi

Court found in favour of wife and observed that
―The wife can thus obtain an injunction restraining him from interfering with her
right... The wife in this case is not merely exercising a common law right over the
property. She has adduced evidence of her financial contribution towards the
purchase of the land plots, the construction of their home and the funding of the petrol
station business. It was therefore irregular and inequitable for the husband to chase
the wife from the home/ house whose purchase and construction she has substantially
contributed to; and on which she had lived for nearly twenty (20) years.‖!

Falconer Vs Falconer 1970

This case appreciated the doctrine of advancement and it was held that the
presumption of advancement where the husband made financial contribution to a
house in the wife, name rarely applied now to cases concerning beneficial ownership
of a matrimonial home and the principle applicable is whether a matrimonial home
standing in the name of the husband or wife alone belonged to both of them jointly (in
equal or unequal shares).
In this case The husband and wife were married in 1960. In 1961 when they were
living in a flat, they decided to buy a plot of land and build a house on it. The price of
the plot was £525 of which the wife‘s mother provided £80 and the balance was
raised by mortgage buy the wife as the mortgagor and the husband joining as a surety.
In the construction of the house, the wife was the mortgagor, the husband‘s father
guaranteed mortgage repayment for 17 months and the husband paid £105 out of his
money. The husband was paying the wife for house keeping until 1967 when the wife
committed adultery and on dissolution of marriage.
Held, the plot of land was solely obtained by the wife‘s efforts and contribution and
hence belonged to her, but the house was paid for by both parties and belonged to
them jointly in equal shares.

Whether the property in question is matrimonial home the law imputed to the husband
and the wife an intention to create a trust for each other by way of inference from
their conduct and the surrounding circumstances.
Common intention cannot be inferred where there is indirect contribution.
In Gissing v. Gissing, the parties purchased a matrimonial home and conveyed it in
the sole name of the appellant. There was no express agreement as to how beneficial
interest in the matrimonial home should be held. The respondent made no direct
contribution towards the initial deposit or legal charges nor to the mortgage
instalments. The respondent provided some furniture and some equipment for the
house and for improving the lawn; she also paid for her clothes and for her son‘s
clothes.
It was not suggested that either the respondent‘s efforts or earnings made it possible
for the appellant to raise the loan or the mortgage. The marriage broke down and the
respondent obtained decree absolute.
Issue, whether the respondent had any beneficial interest in former matrimonial
home?
Held, on the facts, it was not possible to draw any inference that there was common
intention that the respondent should have any beneficial interest in the matrimonial
home. The court could not ascribe intentions which the parties never had, nor can the
ownership of property be affected by mere fact that harmony has been replaced by
discord.

Ulrich v. Ulrich & Felton

Before their marriage, the parties bought a bungalow. The wife contributed £415
and the husband obtained a mortgage for the rest of the money i.e. £2000. The
bungalow was conveyed in the husband alone, it was intended to become their
matrimonial home. After their marriage they both continued with their work, their
joint earnings being used for household expenses. After delivering an issue of the
marriage the wife ceased to work to look after the boy. After resuming work the wife
committed adultery and the husband left the matrimonial home and on obtaining
divorce it was agreed that the matrimonial house had to be sold.
Held, money contributed before marriage was the same as that contributed after, the
husband and the wife were entitled to the house in equity. A variation of ante nuptial
settlement should be fair and the husband should take half of his share of equity of
redemption of the house and the wife‘s half should be put in trust in whole or in part
for the child of the marriage

The inference of trust will be readily drawn when each spouse has made a substantial
contribution to the purchase price or to the mortgage installments wither directly or
indirectly……
Tinker Vs Tinker (1970) P 147

Case Vs Ruguru (1970) EA SS.

In this case the husband, a European lived with the respondent for 5 years. He had
only paid a fraction of the dowry, while according to the Kikuyu /Embu custom
unless half of the dowry was paid there was a slaughtering ceremony which had to be
performed.
The wife sued for the matrimonial house but the court held that because bride price
had not been fully paid and the slaughtering ceremony not performed, there was no
valid marriage and the wife would not remain its occupancy of the house since she
had no valid rights to it.
In Allen v. Allen, 1961 WLR 1186
The husband had agreed before marriage to purchase a house from her mother in
law, after the purchase he put it in his sole name. During the subsistence of marriage
his wife applied her income towards household expenses while the husband paid the
mortgage installments. During dissolution of marriage the husband sought to
repossess the whole property as the sole owner but the wife counter claimed for a fair
share.
The court said that it was not automatic that equal shares arose where the husband and
the wife were wage earners. However the court agreed with the wife and said she was
entitled to a share due to her house hold contribution.

Household property and gifts between spouse.

It is possible for one spouse to sell goods to the other, and property would pan to the
other spouse.(Ramsey Vs Margaret). Also, gifts may be effectively sold or given by
spouses to each other but this is act must be accompanied by delivery of the property
and the title transferring to the recipient.
Difficulties however, may arise in such situations where spouses rarely make
contracts or execute deeds for gifts. This is normally because spouses will use
property together such that an intention to make a gift can readily be inferred from the
permission to use the property in questions.

In this case, the B.O.P by the party alleging a gift from another spouse is higher than
that of a strange. It is also difficult to prove delivery especially regard to gifts which
are for the exclusive use of the dance.

Little problems will suffice where delivery is made by physically handing over,
however difficulties will arise with goods which have already been used by both
parties in a home and will continue to be used even when they are given away as gifts
e.g furniture.
Therefore, in order to perfect a gift of a chattel, there must be an indication on the part
of the donor to pan the property to the donee and in addition either a deed executed by
the farmer or an effective symbolistic delivery of the chattel to the party.
This was discussed in Locke Vs Health where the husband was held to have given all
his furniture to the wife by symbolistic delivery of a chair.

Vashall Vs Vashall (1894)11 T.L.R 150

Backhouse Vs Backhouse (1978) ALL ER 1158
Simpson Vs Simpson(1992) ALL ER 601

Generally, courts slow to infer a delivery of a chattel from one spouse to another. This
is because of the danger that spouses may fraudulently allege a prior gift of one‘s
goods to the other in order to keep such property out of the hands of creditors.
Accordingly, court strictly requires proof of an existing transaction, involving such
gifts and they also insist an evidence of effective delivery.

Re Cole (1963) ALL ER 435

Where a husband completely furnished a new house before his wife set foot in it.
When she arrived in the home, the husband put his hands over her eyes, looks her into
the first room, uncovered his eyes and said;
―look‖
She then went in all the other rooms and handed various articles and at the end of this
function said to her ―It‘s all yours‖. The furniture nevertheless remained insured in the
husband‘s name, the husband subsequently became bankrupt and the issue was
whether not the wife was entitled to the furnishing.
It was held that the wife had failed to establish an effective delivery and consequently
the gift to he was never perfect, for a gift of chartel is not complete unless
accomplished by something which constitutes an act of delivery as a change of
possession or a deed.

Bank accounts
Wives and husbands may have their separate accounts. It is also possible that they
may have pint accounts or a joint pool from which they deposit or withdraw money
though not necessarily in equal proportions. As a result they both acquire a joint
interest there in.
However, several interests may arise in regarding to the share of this joint interest
particularly considering the fact that they made different deposits and different
withdrawals.
An important authority is Jones Vs Maynard (1951) 1 ALL ER 802/6. In the case a
husband authorized his wife to draw on his account which was thereafter treated as a
joint account. Further into this account was deposited dividends from both the
husband and wife‘s investments. The husbands contribution into this joint account
were greater than those of the wife. The two had not agreed on what their rights are in
this joint venture but they generally regarded the account as their pint properly.

The husband frequently withdraw money from this account and deposited it in his
own businesses. Subsequently, the two separates and the husband closed the account.
The marriage was dissolved and the wife sued for her share in the account as it stood
on the day it was closed and in the investment, in which the husband had previously
purchased out of it.
The court did not inquire how much was deposited or withdrawn by each party it held
that the wife‘s action would succeed for the court looks at the intention of the parties
to establish the joint account.
Held – On the evidence the intention of the parties was to constitute a pool of their
resources in the form of a joint account; it was not consistent with that intention to
divide the moneys in the account and the investments made with moneys withdrawn
therefrom by reference to the amounts respectively contributed to the account by each
of them; and, therefore, the husband must be regarded as trustee for the wife of one-
half of the investments and of the balance of the account.

―In my judgement where there is a joint account between the husband and the
wife a common pool in which they put all their resources it is not constant with
that conception that the account should thereafter be picked apart and divided
up proportionately to the respective part contribution of the husband and the
wife, the husband being credited with the whole of his earnings at the wife with
the whole of her dividends. I do not believe that once a joint pool has been
formed, it ought to be and can be disserted in any such manner. In my view, a
husband earnings or salary, when the spouses have a common pose and pooled
their resources are earnings made on behalf of both and the idea that he has
afterwards, the contents of the pool can be disserted but taking an elaborate
account as to how much was paid by the husband or the wife is quite inconsistent
with the original fundamental idea of a joint purse. The money which goes into
the pool becomes joint property. The husband if he wants a cloth draws a cheque
to pay for it and the wife if she wants any house keeping money draws a cheque
and there is no disagreement about it.
In Harrolds Vs Ester (1937) 2 ALL ER 232
A husband opened a banking account in his wife‘s name, all payments into the
account being made by the husband. The account was used for domestic and other
purposes. The wife always asked for her husband‘s consent before she drew on the
account and she had given the bank the mandate to allow her husband to draw on the
account. Judgement creditors sought to garnishee the account.
Held, on the facts there was a resulting trust in favour of the husband, and as the
moneys were therefore the property of the husband, the wife‘s creditors could not
garnishee the account although it was in her name
Two points need to be noted about joint accounts;
(i) There must be a fund intended for the use of both spouses from which
either may withdraw money.
(ii) Where both spouses contribute to this fund, the intention of a common
purse will be imputed on the parties, in the absence of any other
agreement, but where the fund is derived from the income of the spouse
alone, the presumption will not arise as a general rule, but it is a question
of fact whether the account is to remain his/her exclusive property or
whether there is an intention to establish a common fund.

In Re Bishops, the question of investments purchased from joint funds was discussed.
In this case it was stated that, where spouses opened a joint account to be drawn by
either and any investment made by the money from the account belongs to the person
in whose name the investment was purchased and if one spouse made a purchase in
their joint names there was no equity to displace joint legal ownership. Any
investment purchased with the money from the account in the name of either spouse
belonged beneficially to that spouse and on the husband‘s death the balance standing
to the credit of the joint account accrued beneficially to the wife.

Generally, if a spouse withdraws money from the common purse, property bought
with that money prima facie belongs solely to the spouse and not to both of them
jointly especially if it is for his /her personal use.
This presumption may however be rebutted e.g with regard to investments which may
be held to represent the original fund. In the Re Bishops case, large sums of money
were withdrawn by both spouses to purchase investments in their separate names. In
many cases, shares were bought and half put in one‘s name and the other put in
another‘s name. In an action to recover the balance in the account, court held that the
presumption not being rebutted property belonged to each of the spouses ad that the
spouse in whose name shares had been purchased was entitled to the whole beneficial
interest in them.
That where spouses opened a joint account on items that cheques might be drawn by
either for his /her own benefit, any chartel or investment that was purchased belonged
to the person in whose name it was purchased

Savings from household expenses:

In Blackwell Vs Blackwell (1943) 2 ALL ER 579 A husband and wife separated in
1941. At that date there was standing to the credit of the wife in the books of a co-
operative society a sum of £103 10s which upon the evidence represented moneys
saved from a housekeeping allowance made to the wife while the parties were living
together. It was contended for the wife that this sum was her own property:—
Held, it was clear that the source of this money was the husband‘s weekly allowance
and that was sufficient in the absence of any evidence to the contrary that this money
was still the property of the husband. That if a husband supplied his wife with house
keeping allowance, out of his own income, any balance and any property bought with
the allowance, prima facie remained his property in the absence of any evidence of a
gift from the husband.

However, Lord Denning gave a dissenting opinion in Hoddinot Vs Hoddinot (1949)

2 K.B 406, where he said that this might well work an injustice for it took no account
of the fact that any savings from the house keeping money were as much due to the
wife‘s skill and economy as a house wife as to her husband‘s earning capacity.
See: Rimmer Vs Rimmer (1955) 1 QB 63
Wedding Gifts:
Whether or not a gift belongs to one spouse alone or both of them is a question of the
donor‘s intention. It is generally presumed that wedding presents in the absence of
any evidence to the contrary from the friends of either spouse (third party) belongs to
that spouse alone.

Samson Vs Samson (1960) 1 ALL ER 653, it was stated that there is no principle of
law that wedding presents are joint wedding presents to both spouses. If there is
evidence of intention on the part of the donor, that may determine whether the gift
belongs to one spouse or both, but if there is no such evidence, the inference may be
drawn that gifts from the relatives or friends of a spouse were gifts to that spouse.
Property which was given to one spouse may also become the property of both by
subsequent conduct.

However, a donor may give a gift for the joint use or ownership of the spouses. This
will be treated as jointly owned by the spouses.

In Kelner Vs Kelner (1939) P 411, (1939) 3 ALL ER 957, where a l 1,000 pounds
deposited by the wife‘s father at the time of the marriage in a joint bank account in
both spouses names, was ordered to be divided equally between them. It was also
noted that the spouses subsequent conduct may turn a gift to one of them into joint
property.
Chattels and household furniture, Re Cole
A husband acquired a lease of a large mansion which he furnished by articles
mainly bought by himself. After sometime he took the wife to the mansion and after
showing her around she handled some articles and he told her it‘s all yours. They
always considered the furniture to be the property of the wife. When the husband
became bankrupt the wife claimed most of the furniture as her property.
Held, where the husband and the wife were living together in a common
establishment, possession of the furniture therein followed the legal title to the
furniture and although the wife may have use and enjoyment of it, and the facts of this
case were equivocal and did not establish a charge of possession on delivery of the
furniture to the wife as a gift transferring the property to her. Accordingly there had
not been effective or perfected gift to her of the furniture and the husband‘s trustee in
bankruptcy was entitled to the furniture.

See: Hope Bahimbisomwe Vs Julius Rwabibinumi Div Cause No 4/ 2004.Where

court ordered that marriage gifts be divided equally between the spouses.
Meaning of matrimonial property.
Justice Bbosa in Kintu v Kintu as applied in Julius v Hope supra
“Matrimonial property is understood differently by different people. There is
always property which couples choose to call home. There may be property which
may be acquired separately by each spouse before or after marriage. Then there is
property which a husband may hold in trust for the clan. Each of these should in my
view be considered differently. The property to which each spouse should be entitled
is that property which the parties chose to call home and which they jointly
contributed to.”

Uganda has no statutory provision governing property acquired by a couple during

their married life or prior to marriage
The few statutory provisions such as the Land Act, Mortgage Act or Insolvence define
matrimonial or family property relating to spouses but do not protect women under
cohabitation. In Patrick Namenkere v Florence Mwanja, Mable Sanger v Efren –
invalid marriages resulting into cohabitation hence property acquired didn't constitute
matrimonial property.

In Wamono Shem v Equity Bank the plaintiff claimed to be married customarily and
produced an agreement showing payment of dowry. However the marriage was not
registered under the Customary Marriage Registration Act. Court held that marriage
had not been proved and hence spousal consent was nt required. The judge stated, ―In
Wanano v Equity Bank court held that
―In those circumstances and without deciding conclusively whether the applicant and
the second respondent are married, the marriage if any cannot be relied upon for
purposes of consent……....In other words, the applicant has not proved any locus
standi to the requisite standard to bring his action. In the circumstances the
application is dismissed.‖

Rwabinumi v Hope the supreme court held that, a spouse‘s contribution to

acquisition of property may be direct or indirect monetary contribution and non-
monetary contributions which enables the other spouse to either acquire or develop
the property. That property acquired prior to the marriage by either spouse, property
inherited during marriage or property individually owned by either spouse where the
other spouse has not made any direct or indirect contribution remains INDIVIDUAL
property. Therefore property held prior to marriage and property individually acquired
during marriage does not become joint property.

COMPARISON WITH OTHER JURISDICTIONS

KENYA
 Peter Buru V Njeri , pg 77, Kivuitu v Kivuitu , Muthembwa v
Muthembwa...pg 79
 Resulted into the adoption of the Matrimonial Property Act 2013
 Polygamy declared unconstitutional in Mary Mwajuhi V AG
Debate KY Parliament that indirect contribution to be equated to maids contribution
in the home... Domesticity not valued domestic work of women

RWANDA
 Constitution recognised the equal rights of all persons (A.17)
 Article 26: outlaws polygamy and only recognises civil monogamous
marriage between man and woman
 The Law N0 22/1999 ‗Law to Supplement Book One of the Civil Code and to
Institute Part Five Regarding Matrimonial Regimes, Liberalities and
Successions‘ governs matrimonial property relations

RWANDA PROPERTY REGIMES

 Community property regime (Law/no. 22/99 of 12/11/1999, s 1 Articles 3-6)
(where spouses jointly own all property whether immovable or movable),
 Limited community of acquests regime (ibid s 11 Articles 7-10) (where
spouses make an inventory of all their property and decide which property is
jointly owned and which is separately owned, or
 Separate property regime (ibid s 11 Articles 11-13) (where spouse retains
separate ownership of his/her property).
 Where parties don‘t agree community property regime applies
 Spouses can modify their property regime during marriage
 Spouses in community regime obtain consent of the other spouse in case of
property transactiona
 Irrespective of property regime, both spouses must contribute to family needs
or face action
 In the event of separation or divorce the spouses share the property equally
 In the event of death the surviving spouse takes half of the estate and the
remains half is devolved among the beneficiaries

TANZANIA
 By 1983 in Bi Hawa Mohammed v Ali- recognised the indirect contribution of
the wife and liberally interpreted s.114 of the Law of Marriage Act of 1971
 Applies the doctrine of Presumption of marriage to couples who have
cohabited for 2years+ recognise the interest of cohabiting couples to property
(S.160 of LMA)
The above comparative analysis is a clear indicator that Uganda's East African
counterparts have moved a step further, both in their legislative reforms and
jurisprudential developments in protecting the rights of spouses (especially women) to
share in the matrimonial property/ assets. These transformations have taken into
consideration the unique realities of the African family structures, roles and
responsibilities governed by patriarchal doctrines, customary beliefs and religious
practices, that many a time perpetuate gender inequalities and injustices that cannot be
tolerated amidst the global human rights discourse and undertakings made by the said
States.

It is therefore, imperative that Uganda's legal framework changes with the changing
times and Parliament borrows a leaf from its neighbours. Best practices must be
learned and archaic practices unlearned so that Uganda adheres to its international,
regional and domestic undertakings, and delivers her promises to her citizenry. This
way, she will be able to promote social justice and achieve a more gender sensitive
and egalitarian society, starting with the family institution which is recognised as the
smallest unit of society.

Justice Kisaakye in Julius Rwabinumi v Hope Bahimbisomwe emphasized that

― ―Before I take leave of this appeal, I would strongly urge Parliament to enact a law
that clearly defines what constitutes marital/matrimonial property as opposed to
individually held property of married persons and that spells out the principles that
courts should follow in adjudicating disputes involving division of property upon the
dissolution of marriage. Such law should of course be based on the principle of equal
treatment of the husband and wife, as is prescribed by our Constitution.‖

THE LAW RELATING TO DIVORCE

The term divorce is not defined in the divorce act but basically means a formal
dissolution of marriage based on appropriate and applicable grounds under the
relevant law. The grounds for divorce depend on the nature of marriage and the rules
and procedures that regulate such a marriage as well as its dissolution.

Other than death which automatically dissolves marriage in all other cases marriage
can be dissolved on recognised grounds either under a divorce Act or under applicable
customs as provided for in Article 37 of the constitution which provides that “Every
person has a right as applicable to belong to, enjoy, practise, profess, maintain and
promote any culture, cultural institution, language, tradition, creed or religion in
community with others”, or under Islamic faith and in accordance with principles and
procedures applicable there under.

LAW APPLICABLE FOR DIVORCE

Divorce is governed by a number of legislation including constitution Article 31(1)
which provides that “Men and women of the age of eighteen years and above have the
right to marry and to found a family and are entitled to equal rights in marriage,
during marriage and at its dissolution.”, Divorce Act Cap 249, Customary marriage
registration act Cap 248, the marriage and divorce of the Mohammedans‘ act, the
judicature act section 14, common law and doctrines of equity and Divorce rules.
Julius Rwabinumi v. Hope Bahimbisomwe, Civil Appeal No 30/200 C.A

PRELIMINARY FOR DIVORCE UNDER THE DIVORCE ACT

Jurisdiction is very important in divorce, it is important to identify the court with
prerequisite jurisdiction to entertain the petition for the purpose of divorce under the
divorce act.

Jurisdiction is provided in Section 3 of the divorce act.

(1) Where all parties to a proceeding under this Act are Africans or where a petition
for damages only is lodged in accordance with section 21, jurisdiction may be
exercised by a court over which presides a magistrate grade I or a chief magistrate.
(2) In all other cases jurisdiction shall be exercised by the High Court only.

DOMICILE
In order for a court to make a decree for dissolution of marriage, the petitioner must
prove to the court that at the time which the petition is presented he/she is domiciled
in Uganda. This section was subject of judicial separation in the case of Joy Kigundu
v. Aggrey Awori [2001-2005] HCB 122. The court held that section 2 currently
section 1 of the divorce act is to the effect that a decree for the dissolution of a
marriage cannot be made unless the petitioner is domiciled in Uganda at the time
which the petition is presented. In the instant case the petitioner was domiciled in
Kenya and the High Court of Uganda in the circumstances had no jurisdiction to
entertain her petition for the dissolution of marriage.

There are various ways or forms in which parties may acquire domicile in Uganda.
1. Marriage; this arises in relation to married women whose domicile depend on
the domicile of the husband as long as he is alive. In the case of Joy Kigundu
(supra), the court observed that during the life time of the husband, the wife
cannot acquire domicile of her own separate from that of the husband because
domicile of married women depends on the husband and since her husband
was domiciled in Kenya her domicile was also in Kenya.
2. Domicile of choice; it is possible for parties to marriage to acquire domicile of
Uganda by choice, in order to satisfy the court that the parties have acquired
domicile of choice, they must prove that they have abandoned their domicile
of origin and they have settled intention to permanently stay in Uganda.

 Tatiana Adebiyi v. Adebi Adenji [1990-1991] KALR 36

 Thornhill v. Thornhill [1965] E.A. 268
 McKay v. McKay
 Lyon Zimblai

Domicile maybe proved by the petitioner‘s evidence by way of affidavit. Thornhill &
McKay. The burden of proof of domicile lies on the petitioner and the standard of
proof vary depending on whether the petitioner is relying on her domicile or on the
domicile of the other party to the marriage. Lyon‘s case

GROUNDS FOR DIVORCE

In a petition for divorce, it‘s incumbent on the petitioner to prove existence of a valid
marriage domiciled in Uganda, the grounds for divorce and absence of any bars to the
divorce. Whan v. Giggon, he must prove that he is an African for purpose of
jurisdiction.
Section 4(1) of Divorce Act allows the husband to apply to the court by petition for
dissolution of marriage on the ground that since the solemnisation of their marriage
his wife has been guilty of adultery.

In Norman v. Norman, it was held that adultery means adultery given the natural and
the ordinary meaning of the word.
In section 4(1) the issue that the husband will only petition only on the ground of
adultery, the words were so clear and should not be construed as giving the husband
any other ground to petition for divorce.

However, the constitutional court took a different view in Uganda Association of

Women Lawyers v. Attorney General (FIDA case) wherein they stated that each of
the ground in section 4 is available for both the husband and the wife and this is the
law. According to section 4(2) a wife may apply by way of petition.

ADULTERY
Is available for both the husband and the wife by the virtue of constitutional court
decision in Uganda Association of Women Lawyers & 5 others v. A.G.
In Dr Kazibwe‘s case, the court noted that the position of the law is that both adultery
and cruelty are distinctive grounds each on its own rights upon which a decree for
dissolution of marriage may be issued. The petitioner (wife) could therefore obtain a
decree for divorce after proving to the satisfaction of the court either the ground for
adultery or cruelty or both.

Adultery has been defined as consensual sexual intercourse during the subsistence of
the marriage between one spouse and a person of the opposite sex not being the other
spouse. It is sexual intercourse between two persons one of whom or both who may
be married but not to each other. Habyarimana [1980] HCB 139

The burden of proof lies on the petitioner to satisfy the court that indeed there was
adultery committed by the respondent. In Mary Ruhara v. Christopher Ruhara, it
was held that the basic rule as established by case law is that in cases of adultery the
burden of proof lies on the petitioner and it is heavier burden than that that lies on a
party to an ordinary civil action though it is not high as in criminal cases.

In order to constitute adultery as a ground for divorce, there must be penetration of

female organ by the male organ. In Dennis v. Dennis, SINGLETON LJ stated that
there is no distinction to be drawn between the words ―sexual intercourse‖ in the
definition of ―adultery‖ and ―carnal knowledge‖ in the criminal law. It must be shown
that there is some penetration. In matrimonial suits it is not often possible to give
direct evidence of sexual intercourse. The practice is stated by the late MR William
Rayden in the first edition of his book (at p 63) published in 1910:
―It will not be out of place here to consider the nature of the proofs which will satisfy
the court that adultery has been committed: to succeed on such an issue it is not
necessary to prove the direct fact, or even a fact of adultery in time and place; for if it
were, in very few cases would that proof be attainable; it is rarely indeed that parties
are surprised in the direct act of adultery; and such evidence is apt to be disbelieved:
in nearly every case the fact is inferred from circumstances, which lead to it, by a fair
inference, as a necessary conclusion; and, unless this were so held, no protection
whatever could be given to marital rights.‖

It is important that the petitioner should adduce evidence to corroborate the alleged
adultery. In Ruhara v. Ruhara, it was stated that in proving adultery, the court would
normally look for corroboration but direct evidence apart from that of the petitioner is
seldom available. Corroboration can also be sought from the previous or subsequent
conduct of any party to the proceedings if that conduct influences any fact in issue
(s.7 evidence act).

It has also been suggested that in case of adultery, it is not necessary to prove a direct
fact of adultery. Adultery can be proved by circumstantial evidence as long as that
evidence is cogent to the extent that it raises no other inference other than the fact that
the respondent committed adultery.

George Nyakairu v. Rose Nyakairu,

In the case of *Rapsin v. Rapsin, the issue was whether evidence of hotel receipts,
register and evidence from the waitress was sufficient to prove adultery.
Held, where there is no direct evidence, the court may rely on circumstantial evidence
to make an inference as to the existence of adultery and hotel receipts and register
could constitute sufficient corroboration as evidence to substantiate allegation of
adultery.

Where an allegation of adultery made against the wife, she may in order to rebut that
allegation prove that it was not consensual. The burden lies on her to prove lack of
consent. Redpath v Redpath. 1950 All ER 600

Standard of proof is discussed in the case of Habyarimana. The standard of proof is

well settled where there is an allegation of adultery, it must be proved to the
satisfaction of the court, while the evidence did not reach certainty, it must
nevertheless carry a higher degree of probability. In Dr Specioza‘s case, it was stated
that it is not ordinary but beyond reasonable doubt.

Adultery may be proved by the evidence of the accused. in Specioza‘s case, the court
noted that whereas adultery can be proved by petitioner by direct or circumstantial
evidence, it may be proved by admission by the party against whom it is alleged.
Once admitted it need not be proved and the person making the claim is entitled to
judgement upon admission.

Preston-Jones v Preston-Jones
The husband was absent from the United Kingdom from 17 August 1945, to 9
February 1946. On 13 August 1946, the wife gave birth to a normal child, and the
husband brought a petition for dissolution of marriage on the ground of her adultery,
the charge being based on the fact that a period of three hundred and sixty days
elapsed between 17 August 1945, and 13 August 1946, from which, it was alleged, it
followed that the child must have been conceived in adultery.
Held, though a finding of adultery against a wife might have the effect of bastardising
her child that did not mean that a degree of proof of adultery was required such as in a
scientific inquiry would justify the conclusion that such and such an event was
impossible. No higher proof was demanded than that the fact should be established
beyond reasonable doubt, and in the present case all the court could demand was that
it should be established beyond all reasonable doubt that a child born three hundred
and sixty days after a particular coitus could not be the result of that coitus. On the
evidence in the present case it was proved beyond reasonable doubt that the husband
was not the father of the child, and he was entitled to a decree.

Where the petitioner relies on adultery as a ground for divorce, it is essential that the
respondent be guilty of adultery and the petitioner must be innocent.
Christopher Kivumbi, the court noted the petitioner on his own admission was
continuously involved in adultery and could not be aggrieved with the adultery of the
wife.

However, a petitioner who si guilty of adultery may apply to court to have such
adultery condoned by court and if a proper application is made and granted by a court
the petition for divorce may be allowed.
Where the petition is commenced by the husband, section 5 requires that the alleged
adulterer be made a co-respondent to the petition.
A husband may by petition claim damages from the person who commits adultery
with his wife, however an equal provision is envisaged by the virtue of constitutional
court decision in Uganda Association of Women Lawyers case

Kagimu v. Kagimu
CRUELTY
Section 4(2) of the divorce act allows the wife to petition for divorce on the ground of
adultery coupled with cruelty. However in view of constitutional court
pronouncement in Uganda association for women lawyers, the ground of cruelty alone
can be relied on by either party.

In Kazibwe v. Kazibwe, it was held that the petitioner could obtain a decree of
divorce after proving to the satisfaction of court either the ground of adultery or
cruelty or both. Even a husband can be a victim of cruelty.

Divorce act does not define what amounts to cruelty as a ground to support
dissolution of marriage; nevertheless judicial creativity has laid down the meaning of
cruelty. In Habyarimana v. Habyarimana, it was stated that no conduct can amount
to cruelty in law unless it has the effect of producing actual or apprehended to the
petitioner‘s physical or mental health.

In order to constitute cruelty, the petitioner must prove that the respondents conduct
constitutes danger to life, limbs or health, bodily or mental or a reasonable
apprehension of it. Kasasa v. Kasasa 1976 HCB 348

In order to constitute legal cruelty, the conduct of the respondent must be serious. The
rule implies that the conduct and nature of cruelty of the respondent must be beyond
the reasonable wear and tear of married life. In Mary Ruhara v. Christopher Ruhara, it
was held that scalding a person with burning oil would be the most cruel and brutal
act and a clear injury to life and limb.

In order to determine whether a conduct amounts to cruelty, the general rule is that the
whole matrimonial relationship must be considered and the rule is of special value
where cruelty consists not of violent acts but injurious reproaches, complaints
accusations and taunts.
In Habyarimana‘s case, the court noted before coming to a conclusion as to whether
the respondents conduct amounts to legal cruelty, the court must consider the impact
of the personality and conduct of one spouse or mind of the other and all incidents and
quarrels between the spouses must be weighed from that point of view and regard
must be heard on the circumstance of each case and the mental and physical
conditions of the parties, their characters and social status. It has further been
suggested that in deciding whether a particular conduct amounts to cruelty as a
matrimonial case, the whole matrimonial relation, the entire conduct, the personality,
the character and the social status of the parties must be taken into account. Kagimu v.
Kagimu.

The burden of proof lies on the petitioner to prove that the acts or the conduct of the
respondent amounts to legal cruelty. In Gakwavu v. Gasengyre, the court noted that in
a petition based on cruelty, courts cannot examine every squabble in relationship. The
standard of proof is not beyond reasonable doubt as require in criminal cases, like
adultery the standard of proof in cruelty is slightly higher than the preponderance of
probability required in ordinary civil cases.

col…….. 1965 EA 132

Collins v. Collins 1964 AC 644
Musinga v. Musinga KALR

Where the spouse deliberately and persistently refuses to have children and leaves her
in despair and affects her mental health, it is sufficient ground.
In Knott v. Knott 1995 2 All ER 405
DESERTION
A spouse may petition for divorce on ground of desertion by the other spouse for two
years without reasonable excuse. Kazibwe v. Kazibwe.
Desertion has not been defined in the act but case law has provided the various
elements that may constitute matrimonial offence of dersertion.
1. Departure/withdrawing from the society of the other spouse.
2. De facto separation of the spouses.
3. Withdrawing from cohabitation on the part of the deserting party.
4. An intention to depart for two years (animus diserendi).
5. The desertion must not be based on reasonable excuse and the person deseted
must not have consented to it.

N/B. The desertion must still be running at the commencement of the proceedings.

In cases of de facto separation, there must be evidence of complete cessation of

cohabitation otherwise partial neglect of obligation in marriage is not enough.

Perry v Perry 1952 1 All ER 1075

The parties were married in 1939, and in May 1951, the husband presented a petition
for divorce alleging that his wife had deserted him from July 1944, to the date of the
petition. In December 1949, the wife asked the husband for financial assistance. He
thereupon visited her and during the period from that date to
March 1950, he went to see her once a fortnight. On each visit he asked her to resume
married life with him, but she refused. On either two or three of these occasions he
had sexual intercourse with her, as a result of which she gave birth to a child on 6
December 1950, but at no time did the wife resile from her firm and constant intention
never to return to her husband.
Held, though sexual intercourse was beyond doubt a most important incident in the
marital relationship, an act, or two or three acts, of intercourse could not be regarded
as proof of the resumption of marital relationship where a wife, though participating
in such acts, in all other respects repudiated the relationship, and, accordingly, on the
facts of the present case the wife had not resumed cohabitation so as to interrupt or
terminate the period of desertion.

Desertion does not necessarily mean and constitute withdrawal from a place but
constitutes withdrawal from state of things.

Pulford v. Pulford 1923 P

Where the spouses are living together in the same house, the test applicable is whether
they are living as two households or one. The petitioner in that case must prove that
all matrimonial services and any form of normal life has ceased.

Baker v Baker
On an undefended petition for divorce brought by a husband against his wife on the
ground of desertion it was proved that for more than three years before the
presentation of the petition the parties had lived in the same house, which belonged to
them both, but each occupied a separate bedroom and sitting-room and cooked their
own food separately. During that time the husband had not paid any allowance to the
wife. They shared the kitchen and the passages and other parts of the house, but
whenever possible they avoided meeting.
Held – On these facts the parties had ceased to be one household and had become two
separate households, and the wife had deserted the husband.
The petitioner must prove that the deserting party left without consent and presence or
absence of consent may be strictly construed e.g. expressly by judicial separation or
implied from the conduct of the parties. For it to suffice, consent must be freely given.

Patel v. Patel
The burden of proof is on the petitioner to prove to prove the wife had left his
home without consent and without intention of returning and on such proof evidential
burden shifts on the respondent that there was reasonable excuse for departure.

Where parties consent to separation and one party withdraws the consent in
appropriate circumstances the continued absence of the respondent may amount to
desertion.
Where consent to live apart is conditional, and the spouse fails to satisfy that
condition the consent ceases to operate and the continued separation may amount to
desertion.
Kllin 1953 2 All ER 301

Gatward v Gatward (consequences of discharge of judicial seperation)

In an undefended petition for divorce on the ground of desertion, it appeared that the
petitioner was deserted by her husband in July 1931, and that she had obtained a
maintenance and separation order from magistrates in the following December. The
order contained a provision that the petitioner should no longer be required to cohabit
with her husband, but, in June 1938, on an application by the petitioner, the
magistrates made an order deleting this clause. At the time of the deletion of the non-
cohabitation clause, the petitioner had no intention of returning to her husband, and
she applied for its deletion so as to be able to obtain a decree of divorce at the
expiration of 3 years. Though served with the proceedings, the husband made no
attempt to resume cohabitation. The petitioner contended that the desertion, which
ceased to run on the making of the original order, was reconstituted when the non-
cohabitation clause was deleted in 1938:—
Held – desertion was not automatically reconstituted by the deletion of the non-
cohabitation clause, and it was necessary for the wife to prove further facts from
which the court could infer that desertion had been reconstituted. In the present case,
the husband‘s conduct since the deletion of the clause was sufficient proof that
desertion had been reconstituted in 1938.

Predie 1944 EACA 42 (consequences of breaking a continuous period of desertion)

The mere fact that parties reside together does not exonerate the party from being in
desertion of the other especially where there is no sexual intercourse.

In Hutchingson v. Hutchingson, the husband was living apart from the wife but
agreed to resume cohabitation on condition that there would be no sexual intercourse
and the wife was not prepared.
Issue, whether that amounted to desertion?
Held, the husband insistence on refusal of sexual intercourse as a condition for
presumption of cohabitation constituted to desertion.

However, where spouses refusal to have sexual intercourse is founded on

medical/biological reasons, that might not amount to separation. On the same note it
is important to note that structural incapacity to have sexual intercourse does not
amount to desertion.

Beevor v Beevor
The parties were married on 4 April 1923. A son was born to them in Feb 1925, and
from that time onwards the respondent wife consistently refused to have sexual
intercourse with the petitioner husband in spite of his warning that he would leave her
if she persisted in the refusal. The petitioner had treated her with affection and
tolerance but, as she still continued in her refusal, he left the matrimonial home in
May, 1940. From the evidence it was found that the respondent had developed an
invincible repugnance to the sexual act. The petitioner filed a petition for divorce on
the ground of desertion, contending that the respondent‘s course of conduct drove him
away and that, therefore, she was the deserter. The respondent contended that the
departure of the petitioner constituted desertion and asked for the dissolution of the
marriage:—
Held – The evidence led to the same conclusion as though the respondent wife had
been rendered structurally incapable of intercourse by some accident or disease and
that afforded no ground for the petitioner to leave her. The petitioner, therefore, by his
departure had deserted the respondent, who was entitled to a decree.

Constructive desertion; this is a creature of case law. it arises where one of the
spouses conducts him/herself as to make it impossible for the other spouse to continue
living with him or her in the same matrimonial home. In Pulford v pulford it was held
that desertion is not necessarily withdrawing from matrimonial home but state of
things, the test is whether the spouses are living together as a husband and wife.

―In constructive desertion the spouse charged must be shown to have been guilty of
conduct equivalent to ‗driving the other spouse away‘: per
BUCKNILL, J., in Boyd v Boyd ([1938] 4 All E.R. 181 at p 183); from the
matrimonial home and to have done so with the intention of bringing the matrimonial
consortium to an end. In each case the intention may, of course, be inferred if the
circumstances are such as to justify the inference.‖

Bartholomew v Bartholomew
In December, 1945, the husband returned from war service and complained of the
dirty condition in which the wife was keeping herself, the matrimonial home, and the
children, and in March, 1946, he left, telling the wife that, if she failed to effect an
improvement, he would not return. He complained that she failed to improve the
conditions, and he refused to return to her. On a petition by him for divorce on the
ground of constructive desertion,
Held – The fact that a wife was dirty in her person and her home was not of necessity
evidence which showed that she wished to bring the matrimonial consortium to an
end; she might be dirty because she was lazy or lacked energy; the conduct of the wife
in the present case was not of such a grave and convincing character as to justify an
inference of an intention by her to drive the husband away from the matrimonial
home; and, therefore, she was not guilty of constructive desertion.
DENNING LJ. I agree. On the findings of the commissioner the wife was a lazy and
dirty woman who did not keep the house or the children in a clean and proper state, so
much so that on that account the husband left the house. That is not sufficient to make
the wife guilty of constructive desertion. The essential element of intention is
wanting. The wife had no wish that the husband should leave. There is no evidence
that the wife intended to bring the matrimonial consortium to an end, and there is no
ground for inferring any such intention. Without such intention constructive desertion
cannot be found.
The law about constructive desertion was laid down by Bucknill J in 1938 in Boyd v
Boyd, in terms which were quoted with approval by Lord Greene
MR in Buchler v Buchler, in the passage my Lord has read, and the judgment of
Bucknill J was explicitly approved by this court in Hosegood v Hosegood.
The judgments in Hosegood v Hosegood were considered judgments, and I know that
Bucknill LJ agreed with what I said about the nature of constructive desertion.
Winnan v Winnan, in which the wife kept a large number of cats in the matrimonial
home, must have depended on special evidence available to show that she intended to
bring the matrimonial consortium to an end in that she preferred the cats to her
husband. In the present case I see no evidence, and no ground for inferring, that the
wife intended to bring the matrimonial consortium to an end. The real thing for the
husband to have done would have been to buckle to himself and seen that the house
and the children were kept in proper order. Instead of doing that, he left the house and
his children, and was himself the deserter. Accordingly, I agree that the appeal should
be allowed.

BARS TO DIVORCE

In a petition for divorce, the petitioner must prove not only prove marriage, domicile
and ground for divorce but in addition must prove to the satisfaction of the court that
he/she has not been accessory to or has not connived or condoned or the petitioner has
not been prosecuted in collusion. That implies that where there is evidence of
connivance, condonation or collusion even if the petitioner has satisfied the grounds
the court may not grant the petition.
N/B. condonation, connivance and collusion are absolute bars to divorce. Section 8 of
the Divorce Act Cap 249 provides that a petition shall be granted;

(1) If the court is satisfied that the petitioner‘s case has been proved, and does not find
that the petitioner has been accessory to or has connived at the going through of the
form of marriage or the adultery, or has connived at or condoned it, or that the petition
is presented or prosecuted in collusion, the court shall pronounce a decree nisi for the
dissolution of the marriage.

(2) Notwithstanding subsection (1), the court shall not be bound to pronounce the
decree if it finds that the petitioner has during the marriage been guilty of adultery, or
been guilty of unreasonable delay in presenting or prosecuting the petition, or of
cruelty to the respondent, or of having deserted or wilfully separated himself or
herself from the respondent before the adultery complained of, and without reasonable
excuse, or of such wilful neglect of or misconduct towards the respondent as has
conduced the adultery.

COLLUSION
It connotes an improper agreement or bargain by the spouses to the effect that one of
them should bring proceedings against the other for purpose of obtaining divorce. In
Brine v. Brine, 1924 SA SR 432 Sir Francis defined collusion to mean an agreement
express or implied between the petitioner and the respondent for the purpose of
obtaining a divorce contrary to the justice of the case.
The reasonable inference drawn from the foregoing point is that the object of the
agreement is to deceive or impose upon the court by way of evidence that false
witness shall be supplied to the court or material fact withheld from it.

In Barlow v. Barlow, 1937 SA SR 246 it was stated that the test applicable to
determine whether there is collusion, is for the court to find out whether there has
been such an agreement in fact or not and it is a question dependent on the
circumstances of each case. The mere fact that the respondent has not defended the
petition is not enough to constitute collusion. In Patel v. Patel, the respondent sent a
lawyer and said he had no ground for opposing the petition.

Where the petition is initiated, procured and conducted especially without being
defended on the basis of an agreement between the parties and as a result relevant
material is withheld from the court with the intention of facilitating a ground for
divorce, such arrangement constitutes collusion.
Stavridis v. Stavridis, collusion may be inferred from the circumstances under which a
petition is instituted. In Gabric v. Gabric, the court noted that there was collusion in
the institution of a suit for divorce when the commencement of the suit was brought
about by an agreement by the co-respondent to deposit a sum of money for the
petitioner‘s costs of suit and of obtaining evidence, and by an agreement by the
respondent to supply an address where necessary evidence would be obtained, and the
deposit and information were in turn brought about by an undertaking on the part of
the petitioner not to seek custody or damages.

It is ordinarily enough to constitute collusion where the agreement between the parties
prevents the respondent from asserting material facts which amounts to withholding
substantial evidence from court. In Hubbard v. Hubbard, the court noted that there
had been a bargain between husband and wife that the husband would not present his
side of the facts so that an intended result was that the court would be deprived of
relevant evidence which might affect its conclusion. The court further noted that this
constituted to collusion with intent to cause a perversion of justice.

Where defence is abandoned for a consideration there is collusion as stated in Grose

v. Grose, collusion would arise where parties agree not to urge a substantial and
bonafide defence which would by virtue of that agreement, deprive the court of an
opportunity of fulfilling its statutory functions of determining the issues involved and
which would lead to a decree or order being improperly obtained.

In Shaw v. Shaw, it was observed that where there is an agreement for consideration
to withhold evidence, which if believed, would establish that the court had no
jurisdiction to hear the suit, then that agreement would seem to be collusive.

It is also important to distinguish between the two types of collusive bargain. A

collusive bargain which in the ordinary meaning of the word is corrupt, remains an
offence legally and morally e.g. procurement of a decree upon a false case or
improper pressure by financial bribes or threats upon the spouse to bring a suit or
abandon a defence.
The other collusive bargain depicted in Nash v. Nash, is a collusive bargain which
represents an honest negotiation between the parties which is not intended to deceive
the court either by putting forward false evidence or suppressing or withdrawing a
good defence.

Colbec v. Colbec [1961] EA 431 wife petitioned for divorce on the grounds of
cruelty. Husband filed a reply but instructed his counsel not to defend the case
because he didn‘t want his wife to be subjected to cross examination. It was held that
there was no collusion.

Where the petitioner is proved to have colluded in presentation of the petition, section
7 empowers the court to dismiss the petition. ―The petition shall be dismissed if the
court is satisfied that the petition is presented or prosecuted in collusion with either
the respondent or co-respondent.‖

Churchward v. Churchward 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 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.

CONNIVANCE

Connivance connotes behaviour of a person designed to cause his/her matrimonial

spouse to commit a matrimonial offence such as adultery, this implies that the
petitioner has consented to the matrimonial offence. connivance is where the adultery
of one spouse has been caused or has been knowingly or recklessly permitted by the
other spouse. In such case the other spouse is an accessory to the adultery. If the
court is satisfied of the evidence that the petitioner has been an accessory or has
connived at the adultery 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 adulterous association, he must have connived for the
adultery to happen.

Godfrey V. Godfrey & Wall (1965)

In this case the court held that a husband petitioner was guilty of connivance at his
wife‘s adultery. The wife told the husband that she was going to live with the co-
respondent i.e. Wall. The co-respondent then came to stay at the matrimonial home.
The husband one day after a drink or two came home and found the wife and co-
respondent embracing each other. He then told them
―if you two want to go to bed together then why the hell don’t you”
which is exactly what the wife and Wall proceeded to do. The next day the petitioner
turned the co-respondent out and chased him out of the home but the wife and the co-
respondent continued with the association and eventually the wife moved out to live
with the co-respondent. When the husband petitioned for divorce on grounds of
adultery the court in refusing to grant him the decree held that he had not shown that
his initial connivance was not the effective cause of the subsequent adultery.
It was stated that where a man wilfully consents to his wife‘s adultery, he is deemed
to have connived and is guilty of wicked and disgraceful conduct that he should not
be allowed to complain of that or any subsequent adultery.

Poulden v. Poulden [1838] All ER 508

In order for a petitioner to succeed, there must be evidence that the adultery originary
being the subject of connivance is not the proximate cause of the subsequent adultery
which is now the subject of consequent petition.
Court in Godfrey categorised connivance into two; the first and the most
prominent being in regard to a position of a conniving husband. The court noted that a
man who consents to his wife‘s adultery is guilty of that and subsequent adultery. The
court however noted that it may be possible for such a husband to obtain relief on
basis of subsequent adultery where he satisfies the court that the connivance was
spent.

The maxim once connivance always connivance is no longer a valid representation of

the law in so far as it doesn‘t accommodate exceptions otherwise, as long as the
connivance is the proximate cause of subsequent adultery it is not spent.

Gipps v. Gipps 1864 HL the husband took money from a man who was sleeping on
his wife and later petitioned fro divorce and joined the man as a correspondent. Court
held that he had connived adultery.

Richmond v Richmond 1952

In August 1950, the husband and the wife went on a caravan holiday with Mr and Mrs
B, the husband then committing adultery with Mrs B and the wife with Mr B, each
party knowing of the adultery of the other. Shortly after the return home of the
husband and wife, the wife gave up her adulterous association
with Mr B. In June, 1951, Mrs B gave birth to a child of which the husband admitted
paternity. On 15 November 1951, he left the matrimonial home and went to live with
Mrs B, and since that date he had paid no maintenance to the wife. Justices found the
husband guilty of adultery, desertion, and wilful neglect to maintain, and made an
order for maintenance in the wife‘s favour. On appeal by the husband,
Held – (i) the husband‘s adultery in August, 1950, had been connived at by the wife;
there was not finding by the justices that this adultery had been condoned; and,
therefore, her connivance continued in existence and she was not entitled to an order
on the ground of the husband‘s adultery.
Gorst v Gorst ([1951] 2 All ER 956), distinguished.
(ii) the husband‘s conduct in leaving the wife and failing to pay her maintenance was
not the ―natural consequence‖ of her connivance at his adultery,
and, as her own adultery had been connived at by the husband, she was entitled to an
order for maintenance on the grounds of desertion and wilful neglect to
maintain.

Gorst v. Gorst [1951] 2 All ER 956

In October, 1949, the wife gave a general consent to the husband‘s adultery, but
excluded from her consent adultery with Miss N. The husband began to commit
adultery with Miss N in January, 1950, when he told his wife, untruly, that he was
associating with another woman. The wife begged him to give up the other woman,
and in March, 1950, he told his wife, again untruly, that he had done so. Believing the
husband was telling the truth the wife forgave him his past adultery and attempts were
made between the parties to resume marital intercourse. The husband continued his
adultery and this was later discovered by the wife who filed a petition for divorce on
the ground of the adultery.
Held – The wife had withdrawn her consent to the husband‘s adultery and had
forgiven his past adultery before the petition was filed; her connivance had
spent itself; and so for the purposes of the present suit she has not connived at
adultery

Douglas v Douglas [1950] 2 All ER 748

The husband petitioned for dissolution of his marriage on the ground of his wife‘s
adultery. Suspecting an adulterous association with the co-respondent he
asked her about it, but she denied that the co-respondent had any hold over her. Not
satisfied with this answer the husband arranged a speaking apparatus and spyhole so
that he could hear conversation between his wife and the co-respondent when they
were alone together in the kitchen so that he might ascertain what happened between
them. What he saw and heard confirmed his suspicions, and he engaged inquiry
agents and made an excuse to absent himself from the house so that the agents could
watch. The agents saw the wife committing adultery during the husband‘s absence.
There was no evidence to show that the husband had done anything to bring about the
illicit association between his wife and the co-respondent, nor that he desired it.
Held – (i) once a husband suspects that an adulterous association between his wife
and another man has started he is not guilty of connivance simply because he watches
for proof of adultery, or even creates an opportunity for it, for he is not consenting to
the inception of adultery but is seeking for proof of its repetition. To obtain the proof
he may even acquiesce in the continuance of the adultery, but that is not connivance,
for in connivance it is essential that there should be a corrupt intention.
(ii) on the evidence the husband did not intend to encourage or promote an adulterous
association by absenting himself on a false excuse, but was merely
seeking proof of what already he rightly believed to exist, and, therefore, he was
entitled to a decree.
Churchman v Churchman ([1945] 2 All ER 190), applied.

Manning v Manning 1950) 1 All ER

In 1947 Mr and Mrs M, a married couple, became friendly with Mr and Mrs F,
another married couple, and the following summer the two families took their
holidays together. On this occasion a certain degree of familiarity developed between
each husband and the other‘s wife, but neither husband resented the conduct of the
other. In August, 1948, Mrs M, realising that she was having an increasing affection
for F, requested her husband to help her to break the association, but he refused to
take any steps in the matter and permitted F to continue to visit his house, frequently
leaving the two alone together. About this time M set up a microphone in his sitting-
room with wires leading to the garage. On 2 October having told his wife that he
should be away for the night, M went to the the garage and, as a result of what he then
heard, he entered the room to find F and Mrs M in the act of adultery. At no time up
to this date had M or Mrs F given any indication of their suspicions and they had
continued to have intercourse with their respective spouses. On petitions by M and
Mrs F for divorce,
Held – The petitioners had allowed and encouraged certain situations to arise which
they knew were likely to lead to adultery; the fact that their motive in so
acting was to obtain conclusive evidence of the offence was immaterial; the principle
volenti non fit injuria applied; and they had connived at the adultery and
were not entitled to relief.

Woodbury [1948] 2 All ER 654 it was held that the court must consider the conduct
of the petitioner as a whole or for a reasonable time to ascertain whether there was
wilful consent to future adultery.
It is also important to prove that the party condoning was aware of matrimonial
offence being committed.

CONDONATION
This means forgiving a matrimonial offence or turning a blind eye on it where a
spouse knows the other has committed a matrimonial offence and forgives expressly
or by necessary implication and conducts himself in such a way that he believes that
he is forgiven that amounts to condonation.
According to section 9 of the Divorce Act, adultery shall not be deemed to have been
condoned unless conjugal cohabitation has been continued or subsequently continued.
Butch v. Butch
The wife discovered that the husband had relations with other women, in order to
keep the marriage intact, she told the husband an isolated case of adultery between her
and a Canadian, the husband left the matrimonial home and petitioned on the ground
of the wife‘s adultery.
Issue, whether the husband had condoned or connived on the wife‘s confession?
Held, in absence of evidence that the husband was aware of the wife‘s adultery, it
would not be said that the husband had condoned
In Cramp v. Cramp (1920) P. 158 the decision in this case was that a husband who
has sexual intercourse with his wife after knowledge of her adultery must be
conclusively presumed to have condoned the offence.

This presumption can however be rebutted.

Henderson v. Henderson
The wife admitted of committing adultery and promised to have nothing to do with
the co-respondent in future. Husband forgave her and had intercourse with her and she
promised not to do it again. However she withdrew her promise the next morning and
the husband left the house. It was contended that in the circumstances there was no
effective condonation of the second adultery
The court stated that where the wife had committed adultery, the essence of
condonation is that the husband with the knowledge of the wife‘s offence should
forgive her and should confirm his forgiveness by reinstating her as his wife. The
issue is whether this re-instatement included sexual intercourse or conjugal
cohabitation as provided for under Section 10 (3) and in this particular case at the
time the matter was in court, such intercourse had not taken place.

Mere forgiveness does not amount to condonation. For condonation to exist the
forgiveness must be followed by cohabitation and the restoring of the offending party
to their former position as husband or wife. Crocker v. Crocker (1921) P. 25 where
a soldier who was serving overseas during the war wrote to his wife offering to
forgive her for having committed adultery when he was away. The wife accepted the
offer but on his return home he changed his mind and petitioned for divorce. It was
held that there was no condonation because there was no reinstatement.

Commission of a further marital offence will revive condoned adultery or cruelty.

That is where the respondent has committed adultery and cruelty which is condoned
by the petitioner if the respondent commits another offence then the condoned offence
will revive and the petitioner will be entitled to a divorce on the ground of the
condoned act. Beard v. Beard (1945) 2 All ER and Bertram v. Bertram (1944) P. 59

Katungye v Katungye,
The wife found the hudband in the housemaid‘s bed having sex but she did not file for
divorce. Later the husband forcefully removed her from the house and brought in
another woman his former girl friend.
It was held court will not grant a decree of divorce where inter alia the petitioner has
during the subsistence of the marriage condoned the respondent‘s adultery. The first
incident of adultery where the petitioner resumed conjugal duties with the respondent
even after catching him inflagranti delicto committing adultery was adultery
condoned and would not be a basis for divorce. However the second incident of
adultery proved adultery.

Ross v Ross it was held that where after condonation a second act of adultery or other
matrimonial offence is proved, the effect is that the previous act which has been
condoned is itself revived and is again an act upon which a petition for divorce can be
grounded.

DISCRETIONARY BARS TO DIVORCE

The court has powers to decide where the petitioner is at fault e.g. of adultery, or
where the petitioner has taken too long or has reasonably delayed with presentation of
petition or has been guilty of cruelty or desertion, the court shall not be bound to
pronounce a decree. Section 8(2) of the Divorce Act “the court shall not be bound to
pronounce the decree if it finds that the petitioner has during the marriage been guilty
of adultery, or been guilty of unreasonable delay in presenting or prosecuting the
petition, or of cruelty to the respondent, or of having deserted or wilfully separated
himself or herself from the respondent before the adultery complained of, and without
reasonable excuse, or of such wilful neglect of or misconduct towards the respondent
as has conduced the adultery.”

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.
Prince v. Prince 20 KLR 121 Unreasonable delay in presenting the petition. The wife
took four years to bring the petitioned but claimed that there were difficulties in
getting evidence, delay of postal correspondence between England and Kenya due to
second world war and she was not in a financial position to proceed with the matter
until the question of maintenance was settled. It was held that each case should be
dealt with on its own facts.in this although the delay was great it was not unreasonable
taking into consideration all the circumstances of the case

Conducing Conduct: This is conduct which conduces the commission of a marital

offence. Therefore cruelty, neglect, desertion or other misconduct towards a spouse
who afterwards as a result commits a marital offence may bar the petitioner from
obtaining a divorce. Lander v. Lander (1890) and Dixon v. Dixon (1952) classical
decision where the wife refused to agree to intercourse until husband filed for divorce
and it was held that the wife was guilty of conducing conduct.

Petitioner‘s own Adultery: This receives some special treatment because in most
cases the petitioner‘s own adultery is a consequence of the respondent‘s conduct
therefore the courts will look at the circumstances to gauge whether that adultery will
bar the petitioner‘s petition. In Blunt v. Blunt the court laid down the considerations
that will be taken into account in exercising its discretion when a petitioner is guilty
of adultery as follows:

(a) The position and interest of any children of the marriage;

(b) The question whether if the marriage is not dissolved there is a
prospect of reconciliation between husband and wife;
(c) The interest of the petitioner and in particular the interests that the
petitioner should be able to remarry and live respectably;
(d) The interests of the party with whom the petitioner has been guilty of
misconduct with special regard to the prospects of future marriage;
(e) The interests of the community at large to be judged by maintaining a
balance between the sanctity of marriage and maintenance of a union
which has utterly broken down.

In Carr v Carr wife petitioned for divorce on grounds of adultery but the petitioner
made a confession of her own misconduct subsequently to her husband leaving her.
Court exercised it discretion and the decree nisi was granted

Kivumbi v. Kivumbi, the petitioner should apply to the court to condone adultery.
.

Medcalfe

PROCEDURE FOR DIVORCE

Section 30 is the law that regulates procedure of divorce regulated by the civil
procedure Act and the rules made there under. S 31 provides that proceedings are
commenced by way of petition which must state in the facts on which the petition is
based and shall be verified by an affidavit. The affidavit must state there is no
collusion or connivance between the petitioner and the respondent.

Where there are issues, the petitioner should indicate the names of the children and
their ages. The petition should show existence of marriage and where it was
contracted from.
The petition should state the ground relied on and the facts conferring jurisdiction on
the court.
The petition may also pray for maintenance, custody and distribution of property and
indicate those properties. The same principles apply to company properties since it is
a distinct entity.
Rwabinumi

The petition must be served on the party affected who is expected to file a reply.

Consequences of divorce
In a petition for dissolution of marriage the aggrieved party may claim for damages
from any person on having committed adultery with his wife. Section 21-22, Uganda
Association of women Lawyers.

Pritchard

He Gypt 1954 KLR 24

Procedure for damage recovery, section 21(3) the court may direct that the damages
be levied from movable and immovable property of the person ordered to pay for the
benefit of the children and maintenance of the wife.

Custody
In a suit for dissolution of marriage, court may, or after a decree absolute has been
pronounced make such orders as to custody and maintenance of young children.
In Teopista Kayongo v. Richards, it was stated that custody of children of tender years
should stay with the mother unless she is not fit and proper.

In determining who should have custody of children, the welfare of minors is the
paramount consideration. The court has to consider; who is the fit and proper person
to take care of the interests of the minors.
P. Nakagwa
Kalisa
The term welfare though not defined ordinarily means in relation to the children all
circumstances affecting the well being and upbringing of a child have to be taken into
account and the court has to do what a wise parent acting for the interest of a child
ought to do.
Nakagwa

The power to grant custody to any parent is discretionary and the court will take into
account a number of relevant factors including the financial position, age and sex of
the minor, education of the minor, health and proper upbringing.
Nyakairu

Where custody is granted to one of the parties, the other party is entitled to the right of
access to the children in the same way children are entitled to visit you as long as you
don‘t interfere unduly with their well being and only where necessary will children be
free to visit.

Maintenance
Where court has granted custody to any of the spouses, it may order the other spouse
to provide for maintenance of the children. Nyakairu

The court can vary the order of maintenance on the change of economy. Section 29
“In suits for dissolution of marriage, or for nullity of marriage or for judicial
separation, the court may at any stage of the proceedings, or after a decree absolute
has been pronounced, make such order as it thinks fit, and may from time to time vary
or discharge the orders, with respect to the custody, maintenance and education of
the minor children of the marriage, or for placing them under the protection of the
court.”

Alimony
According to section 23 of the divorce act, a wife whether or not she has obtained a
protective order may apply to court pending suit and court may make such order as it
may deem it fit and just except that the order should not exceed 1/5 of the average net
income for three years next preceding the date of the order, i.e. alimony pendente lite.

Section 24 provides for permanent alimony where a decree absolute has been made,
the court has to take into account the ability of the husband and the conduct of the
parties. Court may direct either the alimony to be paid in lump sum, annually weekly
or monthly during the life of the wife and depending on the ability.
The order of alimony may be discharged where there is a just cause i.e. inability of the
husband to make continued payment, improved position of the wife. Once the court
makes the order absolute and there is no appeal or the appeal has been dismissed or
the time limit for the appeal has expired the parties may marry again as if the prior
marriage had been dissolved by death. Section 40 provides that “no clergyman in
Holy Orders of the Church of Uganda shall be compelled to solemnise the marriage
of any person whose former marriage has been dissolved on the ground of his or her
adultery, or shall be liable to any suit, penalty, or censure for solemnising, or
refusing to solemnise, such marriage.”

Process of final dissolution of marriage

Once the court allows the petition, it makes a decree nisi and the decree cannot be
made absolute until the expiration of 6 months from declaration of that decree or
longer periods as the Chief Justice may prescribe by rules.
In Neogy v. Neogy [1967] EA 664, it was held that there is no power in Uganda for
court to bridge the 6 months period provided in decree nisi and decree absolute.

Morris v. Morris
The 6 month period is for cooling after which either party can show why the decree
should not be made absolute. Section 37
Where the petitioner fails to move the court within a reasonable time for the decree to
be made absolute the court may dismiss the petition. Section 37(5)

Distribution of property
Section 26 provides for the settlement of the wife‘s property for the benefit of the
husband and the children where the divorce is on the account of her adultery. Section
27gives the court the power to vary settlements

Imelda Mwewulize
The general principle of the law is that, where a spouse is able to prove financial or
monetary contribution to the property acquired by the other spouse or both of them
jointly, the property is distributed in respective contribution.

Edita Nakiyingi

National Provincial Bank v. Ainsworth

However that provision has been subject of judicial consideration in the case of Julius
Rwabinumi v. Hope Bahimbisomwe, the court of appeal stated that Article 31(1)
forms the constitutional basis of the rights of partners in any legal marriage in
Uganda. It further stated that property acquired in the anticipation of marriage and
during marriage constitute matrimonial property and must be shared equally
regardless of the contribution. However its decision was reversed by the supreme
court which held that, a spouse‘s contribution to acquisition of property may be direct
or indirect monetary contribution and non-monetary contributions which enables the
other spouse to either acquire or develop the property. That property acquired prior to
the marriage by either spouse, property inherited during marriage or property
individually owned by either spouse where the other spouse has not made any direct
or indirect contribution remains INDIVIDUAL property. Therefore property held
prior to marriage and property individually acquired during marriage does not become
joint property.

END
AD MAJOREM DEI GLORIAM
MAGIS