Lawyers seek automatic grant of divorce

COURT|DIVORCE|SPOUSE

KAMPALA - A group of lawyers have petitioned the Constitutional Court seeking automatic grant of divorce on application by an aggrieved spouse.

In their petition dated October 15, 2020, Makerere University law don Dr Busingye Kabumba, Innocent Ngobi Ndiko, Nicholas Opiyo, Isaac Ssali Mugerwa and Stella Nakagiri want section 8 of the Divorce Act that requires an inquiry into the collusion, connivance and condonation before allowing or dismissing a petition in divorce matters outlawed. 

They argue that provisions in section 8 of the Divorce Act are archaic and not in consonant with Articles 20,21, 23, 24, 27 and 31 of the Constitution most especially where it requires parties themselves believe that they are no longer want to be bound in marriage. 

In what many people envisage to be a tough legal battle, Kabumba and colleagues also want sections 4, 5, 6,7,8, 30, 33 and 38 of the Divorce Act outlawed arguing that they are inconsistent with Articles 20, 21, 23, 27, 28, 29, 31, 43, 44, 45, 126, 128 and objective 19 of the Constitution. 

Attorney General William Byaruhanga is listed as the respondent in the matter on behalf of the Government.  

Kabumba and colleagues further contend that the requirement by section 4 of the Divorce Act that a person seeking a divorce must prove grounds for it is inconsistent with the Constitution. 

"The provisions in section 4 of the Divorce Act are archaic and have not developed consistently with the development of the Constitution and we want the court to outlaw it," Kabumba states in his affidavit accompanying the petition. 

The legal scholars also contend that the requirement in section 5 of the Act for the petitioner to name a co-respondent and the exceptions listed thereunder are inconsistent with the Constitution. 

"Section 6, 7,8, 30, 33 and 38 of the Divorce Act that gives desecration to the court to decide whether two consenting adults ought to continue in a material relationship is an infringement on the constitutionality guaranteed rights under Articles 20, 21, 23, 31 and 44 of the Constitution," they contend. 

The lawyers also contend that section 6 and 7 of the Divorce Act which widens the court's scope of inquiring to determine whether to allow or dismiss the petition brought by the spouse seeking freedom from the marriage are inhumane as they purportedly expose the petitioner to a compulsion cohabiting and engaging in sexual relations with another against his/her will. 

This, the advocates argue that it is inconsistent with Articles 24, 27, 31, 29 and 44 of the Constitution. 

The petitioners also want the court's discretion to sustain or preserve marriage against the wish of any spouse seeking divorce quashed arguing that is inconsistent with Articles 20, 21, 23, 27, 28, 29, 31, 43, 44 which they argue guarantees consent in marriage. 

Kabumba and his colleagues also want a section of the Divorce Act, which requires proceedings in divorce matters to be regulated by the Civil Procedure Act outlawed. 

They argue that applying Civil Procedure rules presupposes the trial and hence inconsistent with the constitutionality guaranteed rights under Articles 20,21, 24, 23, 31, 43, 44, 45, 126 and 128 of the Constitution. 

The lawyers further want section 33 of the Divorce Act that provides for cross-examination and re-examination of parties typical to civil proceedings outlawed arguing that it is destructive of the family unit and hence inconsistent with Articles 24, 27, 31 and 44 of the Constitution. 

They also want section 38 of the Divorce Act that provides for an appeal as of right against orders in suits for dissolution of marriage quashed arguing that is inconsistent with the Constitution. 

In regard to judicial separation and protection of orders envisaged in section 15, 16 and 18 of the Divorce Act, the lawyers also want them quashed claiming that they are unconstitutional because they are purportedly against husbands and they tend to protect wives which amount to unequal treatment and hence inconsistent with Articles 20,21 and 31 of the Constitution.   

The petitioners argue that the impugned provisions in the Divorce Act simply delay justice in a foregone conclusion because a marriage where one party has withdrawn consent is not consistent with Article 126 of the Constitution and sometimes it perpetuates domestic violence and unnecessary crimes of passion thereby destroying the family unit and possibilities for reconciliation contrary to Articles 241, 31, 44 and objective 19 of the Constitution. 

Prayers 

The lawyers want an injunction restraining all courts in the country handling divorce proceedings from contravening the Constitution by purporting to follow the impugned provisions in the Divorce Act. 

They also seek a declaration that in divorce proceedings where parties are not agreeable to continuing to live together in consonants courts should be enjoined to enter a decree nisi upon receipt of the petition for dissolution of marriage or a report for failed mediation before delving into determinations of the consequential reliefs. 

The Court's deputy registrar Mary Babirye is yet to summon the Attorney General to defend the suit. 

The petition comes at a time when Parliament is considering the 2009 Marriage and Divorce Bill which seeks to reform and consolidate the law relating to marriage, separation and divorce to provide for the types of recognised marriages in the country and marital rights and duties.

The current Divorce Act commenced on October 1,904.

Lawyer Hassan Male Mabirizi is however against the suit. He argues that the automatic grant of divorce will be contrary to the spirit of the framers of the Act.

"The framers of the Act deemed it fit for the case to go into full trial because they knew that marriage could be saved in the process and its automatic grant is against that spirit," Mabirizi argues.