Marriage, Divorce Bill creates rights, duties

SUNDAY VISION

Last week saw MPs divided over the Marriage and Divorce Bill. John Odyek looks into the contentious issues that caused a split in the House.

The Marriage and Divorce Bill 2009 seeks to reform and consolidate the law relating to marriage and divorce. It provides for the different types of recognised marriages in Uganda, marital rights and duties, recognition of cohabitation in relation to
property rights, grounds for breakdown of marriage and rights of parties on dissolution of marriage. The Bill provides for Christian, Bahai, Hindu, civil and customary marriages.

The Bill prohibits widow inheritance, but provides that where a man wishes to marry his relative’s widow, both the man and the widow will have to give their free consent before the marriage can be valid. The Bill prohibits solemnisation (to celebrate or perform the ceremony of marriage) or contracting of a marriage in Uganda without the free consent of either party to the intended marriage in accordance with the Constitution.

The Bill prohibits a person in a polygamous marriage from solemnising a monogamous marriage with another person or vice-versa. However, parties to a polygamous marriage are allowed to convert that marriage into a monogamous marriage if the husband at the time of conversion has only one wife.

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Members of Parliament were divided over the controversial Bill

Bride price

The Bill provides that marriage gifts are not an essential requirement for any marriage under this law. Where a marriage gift has been given by a party to a marriage, it is an offence to demand the return of the gift. The penalty for demanding a return of bride price is a fine not exceeding sh480,000 or a jail term exceeding one year or both.

Registrars

The justice minister is required to divide Uganda into marriage districts. The minister will then appoint a registrar for each district. The registrar will register all marriages in the district. A sub-county shall be the registrar of customary marriages in
his or her locality.

The Local Spiritual Assembly of the Bahai faith shall be the registrar of marriages in respect of marriages celebrated under the Bahai faith. The district registrar will have a district marriage and divorce register Book. All particulars of certificates of marriage and decrees of divorce will be recorded in it.

Licences for places  of public worship

The minister may licence any place of public worship to be a place for the solemnisation of marriages and may at any time cancel the licence. But when the licence is cancelled, it will not affect the validity of any marriage solemnised in that place before the cancellation.

Widow inheritance

The Bill bans widow inheritance without free consent. A person who inherits without free consent is liable to a fine not exceeding sh480,000 or a jail term not exceeding one year or both.

Minimum age for marriage

The minimum age for marriage is set at 18 years with free consent. People are not allowed to marry where they are within prohibited degrees of relationship, whether natural, legal or by clan.

Same sex marriage

Marriage between persons of the same sex is prohibited. Conjugal rights A spouse may deny the other spouse the right to sexual  intercourse on reasonable grounds such as poor health, surgery that affects the capacity to engage in sexual intercourse, child birth, reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological injury or harm. Where a spouse has sex with the other spouse against their consent, it shall be punishable by a fine not exceeding sh2.4m or imprisonment not exceeding five years or both.

In case of a civil offense, civil remedies shall be restriction order, judicial separation, compensation and suspension of conjugal rights will be applied.

Matrimonial property

These include the matrimonial home and household  property within it. Any other property, either immovable or movable acquired before or during the subsistence of a marriage by agreement, seed money provided by a spouse for the setting of a business and property which was separate, but which a spouse has made a contribution towards, except where the property relates to the sale of family land.

A spouse has the capacity to acquire his or her separate  property and includes property acquired before the marriage, gift,  inheritance, damages for personal injuries, nervous shock, mental distress, insurance policy and independently acquired
property.

Debt of spouse incurred during marriage

Where during the subsistence of a marriage, a debt is incurred for the necessaries of life for the immediate family with consent of the other spouse, the debt shall become a family liability to be borne by both spouses equally or without the consent of the other spouse, the debt shall be borne by the spouse who incurred the debt unless agreed by the other spouse.

Dissolution of marriage

Separation of parties may either be by agreement where the parties consent to suspend cohabitation and witnessed by representatives of both or by judicial separation.

No petition force

A spouse shall not petition court for divorce before the expiry of two years from the date of marriage.

No division of matrimonial property

Upon separation of the spouses, matrimonial property shall not be divided by the spouses, but court may order that the spouses share any income that may accrue from the matrimonial property. Any property that may be individually acquired by either spouse during the period of separation shall remain the property of the spouse who acquired it.

Divorce

A petition for divorce by one spouse shall be on the sole grounds that the marriage is irretrievably broken down. Evidence for divorce may include adultery, sexual perversion, cruelty, desertion for at least two years, incestuous adultery, sodomy, homosexuality, pornography, bestiality and incestuous defilement.

Distribution of property

Where cohabitation terminates or a marriage is in the process of being dissolved, the court that determines the property rights of the spouses may make an order to equitably distribute property jointly acquired during the cohabitation or marriage without regard to the reasons for the breakdown of the marriage.

Orders relating to children

The court shall be guided by the provisions of the Children’s Act and in particular, the welfare principle when making orders relating to maintenance and custody of children on separation and divorce.

Maintenance to cease on re-marriage

The right of a party to receive maintenance from his or her former spouse shall cease immediately on the re-marriage of that party.