FOR four years, Agnes tried unsuccessfully to divorce her adulterous husband. Her husband provided for her family but almost literally lived with the other woman. Feeling frustrated, she petitioned the Court for a divorce, but her case was denied because she did not have additional grounds to append to the adultery to secure the divorce.
Annetâ€™s experience was worse. The court turned tables on her divorce petition when it blamed her for deserting her adulterous husband. She said she feared contracting HIV/AIDS after finding out her husband was engaged in sexual liaisons with numerous women. She got the divorce, but never got alimony (regular payments to former spouses for upkeep, on court orders) after court sided with the husband who said the wife deserted him.
Agnesâ€™ and Annetâ€™s cases are just the tip of the iceberg of the inequalities in the marriage relations.
But last Thursday, one of the biggest pillars of inequality in marriage was broken down by the Constitutional Court. Despite cultural and other sentimental arguments for the sustenance of that inequality, the Constitutional Court ruled the divorce law and the practice as discriminatory and therefore inconsistent with the Supreme Law of the Land â€” the Constitution.
The vintage law, which has existed in the Ugandan Law books for a hundred years, was challenged last year by a group of lawyers who included, Parliamentarian Dora Byamukama, activist Jacqueline Asiimwe Mwesige, Peter Ddungu Matovu, Law Professor Joe Oloka Onyango, Philip Karugaba and the Uganda Association of Women Lawyer (FIDA).
The petitionersâ€™ contention was that the provisions of the Act discriminated on grounds of sex, which is inconsistent with the Constitution.
The contentious provisions included the following.
Section 5(1), which permitted a husband to apply to end a marriage on grounds of adultery, but denied the wife the chance. Now the wife too can secure a divorce on grounds of her husbandâ€™s adultery.
Section 5(2) required a wife to have multiple grounds for divorce, among them incestuous adultery (apostasy), bigamy with adultery, or rape, sodomy, or bestiality, adultery coupled with cruelty or adultery coupled with desertion without reasonable excuse for two years. Now the wife can secure divorce using any one of the above grounds. The husband can also use any of the above grounds if they apply.
Section 6, obligated only a husband to name his wifeâ€™s alleged lover as co-respondent, but never required the same of the wife petitioning for divorce. Now the wife can also name her spouseâ€™s adulteress as co-respondent.
Section 22, only permitted the aggrieved husband to collect damages from the wifeâ€™s adulterer after securing a divorce, but denied the aggrieved wife the same benefit from the adulteress. The wife now will also collect damages from the husbandâ€™s adulteress.
Section 23, permitted only the aggrieved husband to collect costs from the wifeâ€™s adulterous lover, but denies the aggrieved wife the same from the husbandâ€™s lover. The wife will also now collect compensation from the offending adulteress.
Section 24 and 25, allowed only the wife to collect alimony from her divorced husband, but denied the man the same from her. Now the man may also collect alimony from his former wife.
Section 27 permitted the husband to claim his divorced wifeâ€™s property on the dissolution of the marriage and denies the wife the same opportunity. The wife will also access his property.
The petitioners contended that the provisions contravened the Constitution, which stipulates that all persons are equal before and under the Law and shall enjoy equal protection of the Law.
They contended that the Constitution prohibits discrimination on the basis of sex, gives equal rights to the couple in marriage and at its dissolution and gives men and women equal dignity.
The five judges on the coram concurred that the sections in question were unconstitutional, effectively nullifying them.
For the Ugandan woman, this means that she does not have to be trapped in a physically or psychologically abusive marriage because of the unfair laws, which segregated on gender grounds. The same grounds that a husband would rely on to divorce would be available to her too and spousal abuse with impunity is also likely to decline because of the available escape route.
Legal practitioners said the Ministry of Justice and Constitutional Affairs has to amend the law to rectify the imbalances. Some said the ruling in effect puts all pending divorce proceedings on hold until the Act is amended and that the divorce decisions made after the 1995 Constitution, using the same provisions can be challenged by the aggrieved parties.
But others, however, say the pending proceedings can still go on with the petitioners relying on the Constitutional Court ruling as an authority. They also said the rulings that have already been made cannot be challenged on the basis that the provisions of the Act were unconstitutional, because the ruling does not work in retrospect.
What they all agree on is that the Government will have to amend the Divorce Law, sooner or later, following the Constitutional Courtâ€™s ruling. Ends
Divorce Law Made Fairer For Women