Will 11th parliament heed Supreme court plea for law on marital property?

Almost a decade ago, Supreme court justice Dr Esther Kisaakye, advised parliament to enact a precise law on matrimonial property, its distribution upon the collapse of marriage to avoid ambiguity and controversy among couples. But as WINSTON RUHAYANA & DAVID LUMU write, the dillydallying of legislators continues to stir up public debate and controversy.

Back in March 2013, Supreme court justice Dr Esther Kisaakye delivered a landmark judgment that clarified on the classification of matrimonial property, its distribution upon the collapse of marriage and the importance of both monetary and non-monetary contributions in the acquisition and development of matrimonial property.

The coram also had then Chief Justice Benjamin Odoki, Justices Bert Katureebe, Jotham Tumwesigye and John Wilson Tsekooko. In that matter of Julius Rwabinumi vs Hope Bahimbisomwe, the couple had exchanged vows in church in 2003 but developed misunderstandings during the first year of their marriage, which culminated in Rwabinumi chasing Bahimbisomwe and her infant son out of the couple’s residence in 2004.

The wife subsequently petitioned for divorce in 2005 on grounds of her husband’s adultery and cruelty, which had led to her marriage to irretrievably break down. They also owned several other properties.

In the lead judgment of justice Kisaakye, the Supreme court unanimously clarified and set a proper legal context that individually owned property does not automatically become matrimonial property upon the exchange of marital vows and must therefore not be shared equally upon the dissolution of marriage. Instead, court should consider each party’s contribution to the acquisition and development of such property.

The Supreme court is the highest court in the land. This ground-breaking judgment has since then set a precedent for the lower courts to follow and breathe life into constitutional provisions on marital property even in absence of a law passed by parliament.

Recently, the Court of Appeal stressed the importance of Justice Kisaakye’s ruling on the question of sharing matrimonial property upon the dissolution of marriage. This was in the matter of Joseph Ambayo Waigo vs Jackline Aserua.

Judicial activism works where there is no remedy and no precedent and both court decisions have been welcomed with public debate and a bit of controversy, especially on grounds that they go beyond religious vows.

ISSUES

The facts are Ambayo and Aserua cohabited for 24 years. By the time the two started cohabiting, Aserua was 19 years. Ambayo financed her return to formal schooling and gained commendable formal academic gains by completing primary education, obtained a certificate in Tailoring and a diploma in Design, Dressmaking as well as enrolling her for driving skills.

In 2002, the parties constructed a house intended to be a matrimonial home on land purchased by Ambayo. In 2005, the parties solemnized their marriage in church but shortly after, they developed misunderstandings resulting in divorce proceedings in 2012.

At the trial, Judge Catherine Bamugemereire ruled that the couple jointly owned the house in equal shares and that the same should be sold, or be valued, and 50 per cent of the value granted to Aserua.

Dissatisfied with the decision, Ambayo appealed to the Court of Appeal, which overruled Bamugemereire’s judgment. In arriving at its decision, it mostly relied on Justice Kisaakye’s ruling in the Rwabinumi’s case to determine the key issues under contention.

For instance, when it came to defining matrimonial property, the Court of Appeal borrowed from the definition in Muwanga vs Kintu High Court Divorce Appeal of 1997 which was adopted by Justice Kisaakye in her lead judgment in Rwabinumi vs Bahimbisomwe.

In summary, the Court in Ambayo adopted the definition in the earlier cases; “The property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.” In this regard, the decision in Ambayo’s case does not introduce anything new.

On the issue of determination of a spouse’s contribution, the Court of Appeal’s approach is not new. Just like the Rwabinumi case, it reconised both direct or indirect and monetary or non-monetary contribution made by a spouse towards the acquisition and development of matrimonial property.

The rule is that the spouse alleging a contribution should be able to prove by way of documentation or other credible evidence that he or she contributed to the property.

On the percentage of share, the Court of Appeal yet again borrowed from the decision in Rwabinumi and earlier cases to hold that there should not be a blanket equal share of matrimonial property. Rather, the proportion of each spouse’s share should be determined by how much – monetary or non-monetary – each spouse contributed towards the acquisition or development of the property in question.

That said, the Court of Appeal introduced the aspect of a non-monetary compensation for non-monetary contribution. In other words, a spouse’s contribution to the personal development and advancement of another should be deducted from the beneficiary’s entitlement at the time of sharing the matrimonial property after the dissolution of a marriage.

Justice Muzamil Kibeedi reasoned that Ambayo’s investment in the Aserua’s education was in a sense paying her and thereby reduced on the quantum of her claim for the unpaid care work. What’s clear in all this is that the Ambayo case simply builds on earlier decisions such as Rwabinumi’s case.

IS PARLIAMENT READY TO CLEAR THE AIR?

The most telling aspect in both cases is that there is need for a comprehensive law on marital property. However, the question remains whether parliament is willing to enact a clear law to leave no room for ambiguity.

Now, the Supreme court decision remains the law until a law is enacted. In Rwabinumi’s case, Justice Kisaakye urged parliament to enact a law that clearly defines what constitutes marital/matrimonial property as opposed to individually-held property of married persons.

She also asked for a law that spells out principles courts should follow in adjudicating disputes involving division of property upon the dissolution of marriage.

“Such law should, of course, be based on the principle of equal treatment of the husband and wife, as is prescribed by the Constitution,” she noted.

Almost a decade later, parliament continues to drag its feet but several legal scholars have warned this is a recipe for disaster and may in future encourage more judicial activism.

Shortly after the ruling in the Ambayo case, Paul Mukiibi, the department head of Law Reporting, Research and Law Reform at the Law Development Centre (LDC) and Patricia Atim P’Odong, the head Clinical Legal Education (CLE) at the School of Law Makerere University, authored a paper in which they noted that decisions of court can change any time if there is no clear law guiding court in interpretation of such matters.

“The long-awaited Marriage Bill, 2017 ought to be resurrected, reviewed and tabled, since it made various proposals towards the enforcement of prenuptial agreements and the distribution of matrimonial property upon divorce,” they said.

Mukiibi and Atim argue that if the recommendations are realized, “this will enable Uganda uphold its obligations in the various international, regional and national legal instruments that seek to ensure protection of the human rights for all. It will also combat the ever increasing instanced of sex and gender based violence and domestic violence in the country hence reinforcing the Domestic Violence Act and the Sustainable Development Goals.”

The current Marriage Act was enacted in 1904 and has not been amended since. In July, parliament granted MP Sarah Opendi leave to introduce a Private Member’s Bill dubbed The Marriage Bill, 2022.