Uganda Parliament at crossroads

Apr 04, 2013

Recent media reports have been awash with accusations and counter accusations between ordinary men, women, activists, traditionalist and religious leaders on the marriage and divorce bill.

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By Jennifer Nyeko-Jones

Recent media reports have been awash with accusations and counter accusations between ordinary men, women, activists, traditionalist and religious leaders on the marriage and divorce bill that the Ugandan Parliament had earlier tabled in December 2009.

The Bill has again been brought before Parliament for further debate. Just as the Bill recognises asset sharing as mandatory in a divorce and after the end of a marriage, by the same breath, it gives cohabiting partners the same rights.

Further, in as much as Parliament proposes to make marital rape illegal, it fails in the process to recognise a number of deep rooted traditional practices.

Therefore, whilst the spirit with which the Marriage and Divorce Bill was proposed is a good one, several contentious clauses may not have been well thought out, as one cannot legislate on all areas where emotions have the upper-hand and where a case has to be based on its own merit.

For example, the clause where the spouse shall have conjugal rights in a marriage, in the form of marital rape.

Internationally, whilst many countries have criminalised this law, many more have not. In the US, this became law only in 1993, although even then, it came under the general sexual offence code. It is within a section of this code, that it was differentiated in its own right, by giving it a shorter penalty and a shorter reporting time than the general rape cases.

In the UK, marital rape was only recognised in 1991 in a House of Lords decision on a particular case. Before that, marital rape was exempt from being classified as a crime.

Again, marital rape would have been created under rape as a statutory offence within the sexual offence Act, rather than a specific offence on its own as it appears in the Bill. The first problem is that when such cases come to court, there will be difficulties in proving that rape in fact took place.

This is because, in a marriage, sexual relations are to be expected and if the defence claims consent, then the burden of proof lies with the prosecution, which becomes a heavy burden to prove, normally.

The second problem, where Uganda comes in today, is culture. In practice, these laws are ignored as the act is not socially considered a crime. In many cultures, and Uganda in particular, traditional ideas about marriage are deeply rooted in the conscious of the population and few know that forcing a spouse to have sex is illegal.

Parliament would do well to remove this clause and include it in the general rape or sexual offence statute.

The clause on matrimonial property, in the Bill, assumes first that there are no children in the marriage, second that separation always has to end in division of property and third that after the divorce, the man stops looking after his children and his former wife, or vice versa, and the parties go their separate ways.

But, the fact is, whether there are children in the marriage or not, the husband/wife has a continuing obligation to their children and wife/husband by maintaining their standard of living. With gender equality, the continuing maintenance obligation can fall on either party, as long as they are the ones bringing in the most income.

Therefore, what should be at the core of a divorce is the maintenance of children and by implication, the maintenance of the wife in the kind of living standard that she has been used to. As such, division of property would not figure greatly in the bigger scheme of things, as the children and wife would continue living in the matrimonial home.

Likewise, the tool that a court would use in a divorce settlement is either child maintenance or spousal maintenance in order to make a comprehensive financial settlement, rather than property as a separate or specific issue. 

Spousal maintenance can be separate from child maintenance and is not always dependent on having children. Its aim in most cases is to enable the less economically well off spouse to meet their lifestyle needs, or those of the family from their former spouse, if they do not have enough income themselves.

This maintenance can either last until the former spouse dies, or the wife gets married again. Equally it can be agreed or ordered by court to last for a specific term and/or it is up to the other party to apply for an extension, if it is too short.

However, the above formula would not apply to those cohabiting and while they would not be entitled to claim spousal maintenance, they would be entitled to claim child support, where children are involved.

Most importantly, the law would always state firmly that the court must consider all circumstances of the case before making an order for financial settlement, on divorce.

Ultimately, whether in the UK or the US, a divorce law assumes that there was a marriage in the division of financial assets, rather than cohabitation. These countries do not provide any legal recognition for people living together and so no one can claim any legal rights over anything or financial settlement, even if they have been together for 20 years.

Only Scotland introduced some limited rights for co-habitants. In the UK, the number of unmarried couples has doubled since the 1990s to nearly three million, while the number of children living with unmarried parents has risen from nine 0.9 million in 1996 to 1.8 million in 2012.

However, virtually nothing has changed in how the law treats cohabiting couples or their property, if they separate, unless they themselves make their own arrangement or agreement. Avoiding marriage creates many problems and there is no process to go through.

According to research from the University of Michigan, “Unmarried couples with children are far more likely to split than married counterparts, and that 66% of cohabiting separate by the time their child is 10 years old, versus 28% of married couples”.

By getting married, it shows you are valuing something which would need protecting and, therefore, the law protects you. On the other hand, co-habiting is seen as not valuing your relationship and, therefore, leaving the door wide open for chaos to ensue.

In the UK, the US and other countries, the law does not recognise, in any meaningful way, a living together arrangement outside marriage. In Uganda, with its deep rooted marriage cultural norms, Parliament should well heed the uproar of its constituents and instead, encourage co-habiting agreements normally termed “pre-nuptial agreements” in the West, for couples who find themselves in this position.  

However, and most importantly, it is strongly advised that co-habiting couples, especially those with children, would be more empowered, if they took that  extra step--that extra step which would also help them stay together, and that is,  by getting married!
 
The writer is a Solicitor of the Supreme Court of England & Wales and practises law in the UK
 

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