Marriage, Divorce Bill: Where are the children?

By Carol Natukunda

LET us be honest. Cohabitating is real in Uganda. Whether we support it or not, the fact is that unmarried couples are living together and have children.

So far, Parliament is divided on the Marriage and Divorce Bill which, among other things, provides for the different types of recognised marriages in Uganda, marital rights and duties, as well as recognition of cohabitation in relation to property rights.

In recent weeks, tempers have flared, especially over sharing of property in the event of separation. But no one seems to care much about the children who are the ultimate victims in the event that their parents do not see eye to eye.

Those against the cohabitation clause say it is not a form of marriage and, therefore, has nothing to do with marriage or divorce and custody of children — the subjects of the Bill. They propose that there should be a separate law on cohabitation.

On the flip side, legislators who want cohabitation retained in the Bill say there are many women in Uganda who are cohabiting and should be catered for in the law as far as property rights are concerned. Still, there is no emphasis on the children.

Cohabiting widespread

Estimates of the number of couples ‘living together’ without marriage in Uganda shows that the phenomenon is on the increase. The proportion of women currently in union (married or cohabiting) is 63%, according to the 2011 demographic and household survey.

Notable, however, is the decrease in the number of marrieds vis-à-vis the increase in number of cohabiting couples. The proportion of married women was at 36% in 2011, from 49% in 2006. Conversely, there was an increase in the proportion of those cohabiting, from 14% in 2006 to 27% in 2011.

Men were also found to be shunning marriage in favour of cohabiting. The number of men (aged 15-49) who are married has declined from 50% in 2006 to 41% in 2011.

In most households, however, children were found to live with their unmarried mothers. Twenty percent live with their mother, but not their father (whether alive or dead); 5% live with their fathers, but not with the mother (whether alive or dead). If current conditions continue, it means more Ugandan children will be born in a household of a cohabiting couple.


Protecting children born out of cohabitation

Though some policy experts claim that the shift is not a “tragic” change, it still remains disastrous for children who are bearing the brunt of being born in these illegitimate relationships. In most cases, mothers have to suffer looking after the children single-handedly and without much income, as the man moves on.

Indeed, justice minister, Kahinda Otafiire, is worried for these little souls, who, by no fault of their own, find themselves in this state.

“You have to recognise the practice of cohabitation because it leads to offspring and, therefore, we want obligations to the people involved. What will you do to protect the children that come out of cohabitation?” Otafiire asks.

Couples living together without marriage create an unstable home for children, according to international research.

A recent study, “Children in cohabiting households,” by The Urban Institute, a research think tank in Washington DC, found that children in non-intact families have roughly twice the risk of social and behavioural problems compared to children in married-parent families.

The children were found to suffer from a range of emotional and social problems — drug abuse, depression and dropping out of school, compared to children in intact, married families.

This was because overall, cohabitating couples had “more conflicts, and lower levels of satisfaction and commitment,” the study said. 

Cohabiting couples with children were also found to break up more than married parents with children, because there were no costs involved in the separation process. In most cases, they were also less likely to combine their income to support the household, which created more tension and consequently breakups, the study said.

Facing the reality According to Marlon Agaba, the information officer of ANNPCAN Uganda chapter, a child rights organisation, legalisation of cohabitation in a way protects children, and ensures they get a share of the property in case of separation.

He says while some cohabitating couples with children argue that the decision to live together before marriage is “convenient,” they need to consider the possible negative effects on their children’s lives.

For instance, in case a woman is not employed, it will force men who get children outside wedlock to provide for the children, even if they do not live with the mothers, Agaba says.

“MPs should know that ideally, children best thrive in situations where both of their parents are harmoniously living together. However, we all know that in reality, due to several circumstances, this is not the case,” Agaba stresses.

Agaba sees no logic why the status of children should be affected by the marriage status of their parents.

“Regardless of their status, whether born in or out of wedlock, through formal marriages or cohabitation, children should not be discriminated against on the status of their parents’ marital status. The issue here is protection of children. They are innocent,” Agaba says.

Against the cohabitation clause

But several MPs still worry that legalising cohabitation is of no consequence. In fact, they argue, it should be a wake-up call to women to retain their dignity.

“It is high time women knew that they should not be taken for granted. Do not accept to have children with a man before you are legally married. If he can pick you today, he will move on and pick another woman,” says Jacqueline Amongin, the woman representative for Ngora district.

Dora Byamukama, a senior lawyer and Uganda’s member on the East African Legislative Assembly, says since cohabitation is not recognised as a form of marriage in the constitution, one would still most likely lose the legal battle in the event of separation.

“When you cohabit, you are not legally recognised as being married, even if you cohabit for 50 years. When it comes to claims, you are not very solid. Even religious leaders are asking ‘why are you legalising people living in sin?’ I propose that for us to move forward, we may need to put it aside very painfully and we do proper research, for the time being,” Byamukama says.

Way forward 

Agaba says as MPs debate the Bill, they should draw their attention to the linkage between this proposed Bill and the Children’s Act. 

According to the bill, where matters of children are concerned, 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.

The act says every child is entitled to live with their parents or guardians, and where a competent authority determines. In accordance with the laws and procedures applicable that it is in the best interests of the child to separate him or her from his parent, the best substitute care available shall be provided for the child.

“In all these contexts, the rights of children should be catered for and their interests should be the primary focus,” Agaba says.