21 February 2013

Uganda: What Is Spousal Consent in Family Property Transactions?


When it comes to family property and transactions involving married couples, spousal consent is paramount. But having children with a man doesn't qualify you to be his wife! You must be recognised by the laws of the land.

Section 38 of the Land Act states; every spouse shall enjoy security of occupancy on family land, which means a right to have access to it and live on it. The same section explains that a spouse shall, in every case, have a right to use the family land and give or withhold his or her consent to any transaction.

Section 39 of the same Act says no person shall sell, exchange, transfer, pledge, mortgage or lease any family land without the consent of the spouse. In the same vein, no person shall enter any contract for the sale, exchange, transfer pledging, mortgage or lease any family land; or give away any family land or enter any other transactions in respect of family land except with the prior consent of his or her spouse.

The 70 year old Suzana Nakirijja (not real name) who lives in Wakiso District has been married to her husband for the last 33 years and was shocked when in January 2013 she saw a letter from some law firm notifying her to vacate her marital home because the husband had sold it to a real estate developer. She was accused of trespassing on the land and was therefore given seven days to leave or risk being thrown out at her own peril.

She resisted the pressures despite the fear and intimidation. The buyers fenced off her land, preparing to come and take full physical possession and demolish whatever is in it!

Fortunately, Suzana reported the matter to the Police, which discovered illegalities in whatever was done. The Police ordered for removal of the fencing. By doing that, the Police protected the rights of Suzana and empowered the community in her neighborhood.

Remember, she is a married wife to her husband and when her husband wants to transact business on the family property, she must give consent. Without her consent, the sale was a nullity and subsequently, whatever follows is unlawful. So, our actions were simple but stern, full of meaning and legally acceptable.

Surprisingly, those money hungry fellows, including some bank officials, money lenders and individual business men, cry louder than the victims of their criminal actions. Some brave it and threaten our junior officers with all sorts of threats. Our message is clear to all; we shall enforce the law to the letter as we pro-actively educate masses on this same law and our procedures so that no one is abused whatsoever. Largely, the fraudsters are failing terribly as we increase community awareness and community empowerment but the fraudsters keep inventing new tricks. So, beware before you fall victim to these criminal minded people.

The lawyers have always reminded us that, "equity helps the vigilant". This should awaken you to the fact that you can be a victim of such crime. And the biggest targets are the vulnerable people; women, the elderly and uneducated. The elite too are defrauded!

The writer is a police officer working with Land Protection Police Unit

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