What are the grounds for divorce?

By Jean-Marie NsambuIn the beginning their was a man. Then God moulded woman out of man’s rib. God then said, a man shall leave his parents, to be united with his wife and start a family. Over time different churches and state laws have developed laws to protect the family.In Uganda, five laws, among them the Marriage Act; and the Marriage of Africans Act, govern the marriage institution.Others are the Marriage and Divorce of Mohammedan Act; the Hindu Marriage and Divorce Act; and the Customary Marriage (Registration) Decree of 1973.Marriage is not always a bed of roses. State Minister for Transport, Andruale Awuzu’s recent divorce of his wife of about 33 years sums it.Married customarily in 1968, the minister divorced wife, Peninah, saying she had denied him conjugal rights, since marrying a second wife in 1985.The customary marriage under which the Awuzus united, has provisions for polygamy. Family laws in Uganda stipulates rights of the parties in a marriage and why and how divorce under that law may be carried out.However, modern society in light of religion, does not generally recognise divorce, says associate dean of the Faculty of Law, Dr. Lillian Tibatemwa-Ekirikubinza.“The prestige of having been wed in church is hindrance to divorces. Vows made on the wedding day are to the effect that only death would separate the husband and wife, and these vows are interpreted by many as prohibition to divorce,” Tibatemwa says.Church of Uganda Archbishop Mpalanyi Nkoyooyo says: “It is the state through the judicial organ, which dissolves marriages.” The Archbishop reveals that the church recognises some situations where divorce can be granted. Uganda’s Divorce Act for instance, does not provide for irretrievable breakdown of a marriage as a ground for divorce. Counselling by religious leaders and family heads is often the answer.Despite sexual intercourse being one of the rights of parties in a marriage, failure of a woman to bear children or a man to father them, is no ground for divorce.But if discovered upon marriage that a party is incapable of responding to conjugal rights; has a contagious fatal disease and deliberately kept it secret; or the two are of a prohibited degree of kinness including being of the same clan, the marriage can be dissolved. Most religious leaders refer to the marital vows to counsel the partners.It is primarily the adulterous act that is prima facie ground for divorce worldwide. Moreover, in Uganda, the Penal Code additionally makes it a criminal offence.For the husband, proven adultery of his wife with any other man is grounds enough to get him a divorce. But, the wife will have to prove desertion, husband’s cruelty towards her, bigamy or an incestuous relationship in addition to adultery with a married woman. With Muslims, a woman may be divorced for disrespect of her husband or in-laws, failure to observe Islamic religious requirements and adultery among others, says Tabliq Sheikh Sulaiman Kakeeto. Msgr. Joseph Obunga a lawyer in the Catholic Church says the church cannot separate what God has joined. “There is nothing like divorce in the Catholic Church.”The Catholic Church only nullifies a union that should not have been. Obunga, a defender of justice on the Ecclesiastical Tribunal, explains.A man and woman whose marriage has been nullified are free to marry other partners or to get married to each other, if the earlier impediment ceases, he says.Among others, the tribunal may annul a union where one of the parties had a subsisting marriage, unknown to people close to them at the time he/she wed in the instant case.He contends that if Catholics married in the Church (be it with a partner from a different denomination) went to court and it granted them divorce, while the Church finds no reason warranting nullification, that marriage subsists. The situation is similar in Islam, says Sheikh Kakeeto. “A Muslim who approaches a court of law for divorce, will have defied rules of Islam under which he or she got married.”He says any of the parties can initiate divorce, but one should approach the Shariah court, unless they did not get married under Islam. Muslims too, recognise the importance of marriage especially one with children, and would try to counsel the husband and wife to forget the divorce. But, the Mohammedan Act gives discretion to a husband to divorce his wife just by stating, orally or verbally, Talaka three times, before the witness.If a man sounds the Talaka only twice, he may reconcile with that woman after a specific period. But, when he sounds it thrice, they cannot re-unite, unless the woman first gets married to another man, who also divorces her.