Define status of spouse legally
May 20, 2007
SIR — In <i>The New Vision</i> of May 16, there was a story entitled “Husbands told to consult spouses on mortgagesâ€. the proposal in the Bill to require spousal consent for mortgaging of land on which the matrimonial home is situated was highlighted.
SIR — In The New Vision of May 16, there was a story entitled “Husbands told to consult spouses on mortgagesâ€. the proposal in the Bill to require spousal consent for mortgaging of land on which the matrimonial home is situated was highlighted.
However, this is not new in our laws and dates as far back as 1998 when the Land Act was first enacted. Indeed, until the 2004 amendment of the Land Act, consent was required from minors and dependants living on the land but the amendment left spousal consent. The lending institutions have for sometime been complying with the requirement for spousal consent albeit with problems.
While the requirement for spousal consent in respect of land in the matrimonial home is okay, the problem is determination of a spouse in the Ugandan context. Several fora I have attended in which the responsible minister and other technocrats from the Ministry of Lands have been present, this issue has been raised repeatedly and one hopes it will not be overlooked by the Legislature.
Legally speaking, a spouse should be one who is in a marriage recognised under the laws of Uganda.
But a check in the courts on all pending cases based on lack of spousal consent will reveal that the majority of claimants are merely co-habiting! This puts lending institutions in an awkward situation compounded by the known slow rate of disposal of cases in our courts, although the issue here is to avoid unnecessary claims. That aside, there are the customary and Muslim marriages which are potentially polygamous. Which of the spouses under these arrangements should give consent?
How do we guard against the possibility of juggling the spouses from residence to residence (as has happened under the Land Act consent requirement) for purposes of alleging that the spouse residing in a particular residence did not give consent? With respect to customary marriages, it gets worse in that the Customary Marriages (Registration) Act is not enforced and a non-registered customary marriage can be disputed, a fact unknown to the general public.
Thus someone unknowingly files a claim in court that he/she is customarily married and did not consent to a mortgage transaction. The lending institution will at the end of the day come out winner but at great cost in terms of time and money, which cost will unfortunately be passed on to the uninformed public.
Parliament should therefore, in deliberating the proposed law, appraise itself of the experiences of the public and lending institutions in complying with the requirement for spousal consent under the Land Act and hopefully define a ‘spouse’ for purposes of the mortgage law to be enacted.
This will balance the need to protect spouses in the matrimonial home (which itself requires proper definition to clear the ambiguity of the Land Act attempt at definition) as well as promote mortgage business.
Exploitation of the loopholes/ambiguities of the consent provisions in the Land Act inevitably renders borrowing very expensive.
Innocent Kyakuha
Kampala
However, this is not new in our laws and dates as far back as 1998 when the Land Act was first enacted. Indeed, until the 2004 amendment of the Land Act, consent was required from minors and dependants living on the land but the amendment left spousal consent. The lending institutions have for sometime been complying with the requirement for spousal consent albeit with problems.
While the requirement for spousal consent in respect of land in the matrimonial home is okay, the problem is determination of a spouse in the Ugandan context. Several fora I have attended in which the responsible minister and other technocrats from the Ministry of Lands have been present, this issue has been raised repeatedly and one hopes it will not be overlooked by the Legislature.
Legally speaking, a spouse should be one who is in a marriage recognised under the laws of Uganda.
But a check in the courts on all pending cases based on lack of spousal consent will reveal that the majority of claimants are merely co-habiting! This puts lending institutions in an awkward situation compounded by the known slow rate of disposal of cases in our courts, although the issue here is to avoid unnecessary claims. That aside, there are the customary and Muslim marriages which are potentially polygamous. Which of the spouses under these arrangements should give consent?
How do we guard against the possibility of juggling the spouses from residence to residence (as has happened under the Land Act consent requirement) for purposes of alleging that the spouse residing in a particular residence did not give consent? With respect to customary marriages, it gets worse in that the Customary Marriages (Registration) Act is not enforced and a non-registered customary marriage can be disputed, a fact unknown to the general public.
Thus someone unknowingly files a claim in court that he/she is customarily married and did not consent to a mortgage transaction. The lending institution will at the end of the day come out winner but at great cost in terms of time and money, which cost will unfortunately be passed on to the uninformed public.
Parliament should therefore, in deliberating the proposed law, appraise itself of the experiences of the public and lending institutions in complying with the requirement for spousal consent under the Land Act and hopefully define a ‘spouse’ for purposes of the mortgage law to be enacted.
This will balance the need to protect spouses in the matrimonial home (which itself requires proper definition to clear the ambiguity of the Land Act attempt at definition) as well as promote mortgage business.
Exploitation of the loopholes/ambiguities of the consent provisions in the Land Act inevitably renders borrowing very expensive.
Innocent Kyakuha
Kampala