Sanctity over simplicity: Why verdict on divorce is a watershed moment

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OPINION

By Debra Tumukunde

In a verdict that sent ripples through Uganda’s legal landscape, Justice Hellen Obura stood her ground like a pillar in a storm, delivering a judgment that reaffirmed Uganda’s fault-based divorce system while striking a blow against gender discrimination.

Her Ladyship cautioned against the potential of no-fault divorce in eroding the sanctity of marriage and undermining Parliament’s constitutional role.

Her judgment in Constitutional Petition No. 23 of 2020 emphasised that marriage is not a revolving door, but a solemn bond demanding accountability. No-fault divorce refers to the court granting a divorce without requiring either spouse to prove grounds like adultery, cruelty, desertion or any other as listed under Section 4 of the Divorce Act, Cap 144.

Justice Obura clarified that the “free consent” in Article 31(3) of the Constitution was meant to address past inequalities where men/boys entered marriage freely, while some girls were coerced by their parents. In contrast, Justice Fredrick Egonda Ntende, in his dissenting opinion, argued that consent is a continuous element that sustains marriage. He found Section 4 of the Divorce Act inconsistent with the Constitution, asserting that ongoing consent is vital to a healthy marital relationship.

Uganda’s 2020 Annual Police Crime Report recorded 18,872 cases of domestic violence, prompting critical questions like: Would no-fault divorce alleviate this crisis? If there are already many petitions in the Family division, as Justice Egonda rightly called the backlog, how many will they be if the Judiciary allowed no-fault divorce? How many marriages will survive? What is our role as believers in preserving Godly marriages? If we fuel those who have lost hope in redeeming their marriages, are we co-creating with God, or are we advancing the enemy’s territory?

In truth, what is being framed as “no-fault based divorce” is, in essence, a rebranding of “a step-in, step-out” approach to marriage, an idea the petitioners and many others are subtly advancing.

With the increased sexual immorality, rising cases of mental illness, and the alarming rate of family breakdowns in our communities today, I find the majority decision to be a thoughtful and timely one. It reflects a deeper understanding of the societal challenges we face and acknowledges the need for moral clarity, psychological stability and reinforces the importance of stable family structures as a foundation for social well-being.

Article 31 of the Constitution guarantees every adult the right to marry. Recognised marriages are intentional, involving deliberate commitment. Thus, the law must safeguard these voluntary unions. While it doesn’t mandate staying in a marriage at all costs, it acknowledges that relationships evolve. Section 4 of the Divorce Act offers multiple grounds for relief, ensuring that those in distress are supported, not trapped.

What would be truly troubling is a system without boundaries, where marriage is entered casually and exited without cause. Without legal safeguards, the institution becomes vulnerable to those lacking genuine intent. Marriage is a solemn covenant, entered freely but not to be exited lightly. The requirement to establish grounds for divorce preserves the institution’s integrity, not to imprison individuals, but to uphold the seriousness of marital commitment.

The Constitutional Court also found Sections 15, 16, and 18 of the Divorce Act inconsistent with Article 31, which guarantees equal rights for both spouses during marriage and at its dissolution. These provisions unfairly favoured women, treating a man’s property as marital during judicial separation while allowing women to retain independent control over theirs. Justice Obura supported an interpretive remedy to apply these provisions equally, aligning them with constitutional principles.

The majority decision delivered by Hellen Obura, Eva K. Luswata, Asa Mugenyi and Moses Kazibwe Kawumi, JJCC on August 18, 2025, rightly preserves the requirement for substantive grounds of divorce, affirming that while freedom to leave must exist, it must not come at the cost of reducing marriage to a fleeting arrangement.

The decision stands as a watershed moment in Uganda’s evolving family law jurisprudence that reaffirms the fault-based divorce framework while dismantling gendered barriers to judicial separation. It draws a delicate balance between preserving the moral weight of marriage and advancing constitutional ideals of equality and justice.

The writer is a lawyer