Harriet K. Nalukenge
2 November 2009
Kampala — The marriage and divorce bill which was presented to Parliament by the Uganda law reform commission, has received mixed reaction from various circles. While the bill is intended to become a law that can promote and advance the rights of every Ugandan, especially women, it has to be understood and accepted for it to be effective when passed into law.
The marriage and divorce bill consolidates all laws relating to the marriages recognised in Uganda - church, civil, customary, Mohammedan, Bahai and Hindu marriages. It spells out the rights and responsibilities of each person in a marriage. It also conforms to the bill of rights in the 1995 Constitution of Uganda which provides, in Article 31, that men and women are entitled to equal rights in marriage during marriage and at its dissolution.
The Marriage and Divorce bill replaces the Domestic Relations Bill (DRB) which was tabled in Parliament in 2003, but was shelved after some stakeholders queried some of its provisions.
Many of th recommendations made in the DRB have been maintained in the new bill, but with some changes to balance culture, religion and equity.
The DRB required that people must enter a marriage with free consent and that the consent of the parents shall not be a requirement for the validity of any marriage. Brideprice was outlawed and it prohibited widow inheritance. The new bill maintains the prohibition of widow inheritance but adds that one can marry his relative's wife provided the two agree and go through a formal marriage. The bill also prohibits incest and spells out that persons who are related in some way, either biologically or through adoption or marriage, should not marry each other.
The major area of controversy in the DRB was section 31 which requires a party to an Islamic or customary marriage intending to marry a subsequent wife, to make an application to the district registrar of marriages and show that he is economically capable of maintaining his wives and children. Such a man must show that he has made provision for a separate matrimonial home for the subsequent wife, except where the wives agree to share the same home. The new bill has solved this by making a separate bill to address Islamic marriages allowing the principles of Islam to guide such marriages.
Marital rape and adultery
Marital rape arises where a person has sex with his /her spouse without their consent. The law further points out reasonable grounds for which a spouse may deny another the right to sexual intercourse. These include poor health, after childbirth, after surgery, if one is on medical treatment or if a spouse has reasonable fear that having sexual intercourse with his/her spouse may harm him or her in some way.
Marital rape is an offence under common law, so this bill is simply domesticating what is already in practice. It is aimed at reducing violence and promoting respect among the married.
This law has also provided for harsh punishment for adultery, rendering both parties to that sexual act liable. If convicted, they would have to pay a fine of not more than sh960,000 or face two years in prison. This provision was intended to make it very costly for anyone to engage in extra-marital sex.
Cohabiting and property
The bill introduces cohabitation as amounting to a marriage and gives such persons some rights. It goes further to state that if cohabitation ceased, either party can apply to court to have the property divided equitably in accordance with the amounts of contribution made by either party.
It is a requirement that both the man and wife be given a copy of the marriage certificate to reduce issues of fraud.
The new bill gives parties to a marriage equal access to their matrimonial property. It also provides for polygamous marriages by stating that matrimonial property acquired after the man marries a second wife shall be owned in common by the man, his first wife and the subsequent wives. The latter, however, only share the man's portion of the matrimonial property. It goes further to prohibit the disposal of matrimonial property without the consent of all the spouses.
Divorce
The new bill provides that both men and women would have to show any of the following grounds; adultery, cruelty, sexual pervasion, desertion for two years or change of religion without the consent of the spouse, or incest. Other grounds like impotence and homosexuality can also be grounds for divorce. The bill, however, provides that one can only petition for divorce after the marriage has lasted two years.
The old laws failed to give significance to a woman's contribution to matrimonial property. It, therefore, deterred development because one did not hope to benefit out of it. The new law provides clear guidelines that could assist men and women to live harmoniously.
This law upholds the sanctity of marriage. While it makes it easy to enter into marriage, it makes it harder for one to obtain divorce.
The writer is a state attorney,
Ministry of Justice
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