interviewBy Elizabeth Namazzi
Kampala — When the Law Reform Commission came up with the Marriage and Divorce Bill, it stirred mixed reactions from different sections of the society. Religious leaders were particularly against the bill, arguing that it threatens the principles of marriage. New Vision talked to Fr. Andrew Kato Kasirye, the judicial vicar (church lawyer) of Kampala Archdiocese, and Prof. John Kakooza, the chairman of the Law Reform Commission ...
FR. ANDREW KATO KASIRYE
Why are you against the Marriage and Divorce Bill?
In the first place, it's a contradiction. They talk about marriage then divorce. Marriage is forever. Marriage is a covenant and agreement to stay together yet divorce is the cutting of the agreement. The first thing they need to do is change the title of the bill so that it doesn't use contradictory terms.
Are you saying that we don't need a marriage and divorce law?
No it's not that this bill is not necessary. It's necessary. It's appropriate to have a law. In fact, in Uganda it's overdue because there are many issues to address when the marriage agreement is broken - like its effect on the children and division of property.
So what are your arguments against it, if you agree that divorce does happen and that there are issues to address when it happens?
There are some things that need to be put right because it's gender-biased the way it is now. It talks of the exploitation of women, yet there are many men who are exploited. There are women who enter marriage with the aim of getting property. They are in it for a short time then leave. Now, isn't that exploitation? It needs to include men against exploitation.
Secondly, it introduces separation of property. That's a good institution but in our Ugandan situation - because this (separation of property) is borrowed from Europe - the concept is that when people marry they share property whether it has been acquired before or during marriage. We understand marriage to mean the two become one. The bill needs to give people a chance to learn this concept of separation of property.
Thirdly, the bill should define marriage not only from the material point of view. It's like a business enterprise. Let the bill look beyond the material contract because this is an institution that involves the whole person. It involves the integral person and goes beyond material elements. If it keeps this in mind, then the question of abuse, divorce and exploitation will not come in. They also talk about impotence and children, yet marriage is not about sex, children and property. It's about the good of the two.
What's your view about turning co-habitation into marriage?
That can't happen because it's a contradiction of what marriage implies. Cohabitation is not an agreement, so how do you turn something which is not an agreement into an agreement unless an agreement is done?
Do you agree that divorce should be granted if a man is impotent?
If the man is impotent even before marriage, it's definitely sounding. If he becomes impotent after marriage, then it's not right to divorce him because marriage is not all about sex. Yes, marriage involves sex, but it's not all about sex. It goes beyond that. Secondly, it forgets that woman can be impotent too. So if the woman is impotent, then what happens to the man? They say that the woman is going to miss sex if the man is impotent, but what about the man, if the woman is impotent? Isn't he going to miss sex? What protection is there for him? In such a case, divorce should also be granted to the man.
Are there instances when the Catholic Church supports a couple to divorce?
From the Catholic point of view, divorce has no place because marriage in the Catholic Church is a covenant. It's a sign of God's love for man and God's love for man is not retracted.
But divorce does happen in real life, even among Catholics. Isn't the Church too rigid in that respect?
It is not a question of being rigid. It's a question of taking us into the understanding of what marriage is.
Divorce is biblical
The Bible does not condone divorce; it is forced to tolerate it. Divorce in the Bible comes out of a situation of hard hearts and indiscipline. It wasn't meant to be like that. Even Christ explained it when He said that Moses allowed divorce because of people's hard hearts. That's why it puts demarcations to make divorce difficult.
So does the Church encourage Christians to remain in sad marriages when they can be happy as divorcees?
The challenge of this marriage institution is that people need to seriously consider before they join the institution. When people marry, they vow to have a communion for life. They promise to stay together in good health and in sickness. If they part, it contradicts the vows.
At least it should put exceptional hardships into perspective.
The Church cannot sever the marriage because it's permanent. The Church has no licence to end what is there. No human being has that power to break a permanent agreement.
So the Church expects someone whose partner has committed adultery, bestiality or homosexuality to hang in there?
The Church doesn't encourage divorce even in then. What it can do is to recommend a separation if there's a danger to the innocent person. Even then, it should be that the innocent person has not condoned the act by having sex with the person, ignoring it or forgiving him/her. But even after separation, the two are still married. In cases of bestiality and homosexuality, the marriage can be declared null and void if bestiality is a behaviour that was hidden from the other party at the time of marriage.
What if bestiality or homosexuality is committed after marriage?
Even then, divorce is not encouraged because what that person needs is counselling and pastoral guidance, because he/she has acquired a wrong habit, just like one learns to drink and becomes a drunkard.
You can't compare homosexuality and bestiality to drinking alcohol!
Why? Both are bad habits, which are acquired during marriage. All habits are equal. The problem is that we are looking at marriage only from the sexual point of view, yet it's not all about sex. It involves the whole person.
What if a homosexual spouse leaves the marriage to live with his/her homosexual partner?
Then he/she is committing adultery because in the Catholic Church it's like a spouse who goes to stay with another woman/man. So we go for a separation. The bill also mentions divorce in case of a two year desertion. For the Catholic Church, if one disappears without explanation, there's a possibility of separating these people but it doesn't allow the innocent person to remarry because it's not a sexual business.
Does the Church recognise secular law?
So what will be the Church's stand if the marriage and divorce law is passed?
The Church would not accept it. And that doesn't mean that the Church will be disobedient to the laws of the country. It only means that the Church is faithful to the basic fundamental meanings of the institution of marriage. The Church will accompany people in marital problems and try to find out if the marriage ever existed. If not, then it can declare that the semblance didn't exist. But note that this is not divorce because the marriage never existed.
And if the Church finds that the marriage did exist?
Then it will declare that the marriage existed. If you decide to abandon the marriage, the Church has no prison to take you to. It will just pastorally guide you instead of throwing you out of the Church.
PROF. JOHN KAKOOZA
What is the Marriage and Divorce Bill about?
It's about the law of marriage - what we call the growing family after your marriage. What will happen after you are together? It attempts to cover the process before you get married and your expectations. How do a husband and wife get together? What happens after the conjugal rights of man and wife? What happens during co-habitation? What happens after a man and wife separate or divorce? The bill is intended to reform and consolidate the law relating to civil, Christian, Hindu, Bahai and customary marriages. It seeks to provide recognition of property rights in relation to cohabitation, separation and divorce.
Did you make consultations to seek people's view about the bill?
A - We did. We tried to go district by district. We used to call meetings and involve civil leaders, husbands and wives and in some cases we asked the youth. We also consulted MPs, did international research to see the position of other countries. Some cases have similar positions so we have their support. We also had workshops both in Kampala and up country. You will be surprised, for instance, that many women in rural areas recommended that we don't outlaw polygamy because they accept that it can't stop the man from going away. They said it is better if he brings the other woman home instead of going away and neglecting the first woman.
So the bill recognises polygamy?
It does, but we put stringent conditions to discourage it. For instance, you must certify the requirements of the culture you are marrying from - like introduction ceremony - and give equal attention to all the women. You must also not be married under statutory law because we don't allow mixed marriages. You must also not be married in church.
The Law Reform Commission has been accused of promoting divorce among married people?
First of all, divorce is not a right which will be given automatically. We expect spouses to tolerate each other not just once, but very many times. So we will not take just one single incident to grant divorce. We also recommend that you get reconciliation using religious leaders, counsellors and friends. If that doesn't work out, then we consider that the marriage has broken down beyond irreconcilable differences.
Will divorce be granted automatically for the exceptional cases like bestiality, desertion, homosexuality, and adultery?
No, not on their own. None of those cases is a ground for divorce on their own. You have to attach another offence, for instance, desertion and adultery. The issue of how often also comes in.
So for how long should adultery, bestiality, homosexuality or even cruelty/violence go on before you grant divorce?
I am saying that if the wife takes a man to court that he has been habitually having sex with three goats for a year, then the judge can say you can get a divorce. If he did it once, he can say it was a mistake. If you beat your wife/husband every night - not just once or twice, because that can be a mistake - then we consider that the marriage has broken down. If the adulterous man is also cruel and beats you beyond intolerable degrees - not just a slap - then the marriage is considered beyond repair.
Some think the bill promotes marriage/cohabitation for the sake of acquiring wealth?
Agreed, but aren't we all fighting poverty?
The fact is that people need property to live. A man and a woman want property. And the most important property is a home. We have seen many men abusing women because they come from poor families.
You propose sharing property upon divorce. What if one of the parties doesn't go out to earn a living? Do they still get a share of the property?
Yes they do, because that attention in a home is a contribution. A house wife is making your life at home comfortable. The husband knows that the wife is there to entertain him and make him happy. Research in Makerere shows that if you quantify the work housewives do, it amounts to a lot of money which you would have paid someone else to do that housework. You also consider that attachment to her name because it improves your social status when you say you are married. You should give credit to that person for improving your status in society.
Does the couple still share the property if it's the man who stays home everyday?
Yes, the same principles apply. Then the husband will be the sort of beggar.
What principles will be followed when dividing the property?
Some media reports have reported that the property will be shared equally, but there's no clear cut yardstick to say so and so is getting this portion. It depends on the contribution. It's about the way of life, the quality of life and the harmonious nature of life. The principle is how happy he/she makes you as a family. The law will take that in consideration so the closer and happier you are as a family, the higher the chances of getting a bigger share of the property.
Don't you think you are promoting cohabitation over marriage?
We are not. What we are saying is that co-habitation offends the social values because women in such marriages are tortured. When they break up, they don't get anything after toiling for years. We recognise that people in cohabitation contribute to wealth, so we agreed that property acquired during that time should be shared so that the man doesn't chase her away with nothing.
Why does the bill grant divorce to the woman whose husband is impotent yet a woman can also be impotent?
The bill applies to women as well, because women can also be impotent. The Baganda even have a term for such women. They call them rocky women, meaning that they can not be penetrated just like it's impossible to penetrate a rock. We recommend that if you discover that your partner can not do the sexual act at the time you get married, and it's a permanent condition, then the marriage should be declared null and void. But that is if you discover at the ceremony that he/she deceived you. If impotence sets in after marriage, then stay married because you vowed to stay together for better or worse.
There have been some media reports that you are for contract marriages?
We have never proposed that and we don't know where it came from. What we proposed was that if marriage was not consummated for three years then it can be cancelled because it never took place.
Can one get divorce if one's spouse is barren?
It's not a ground for divorce because a woman can be artificially inseminated. And a man can be barren but can have sex.
It seems the bill glorifies sex, yet it's not all there in a marriage?
I don't accept that allegation or attitude. Why we mention sex is because a couple can't have children if one is sexually incompetent.