FAMILY CASE COMPILATION

Firm X Partners
1. Mpaata Jerome Owagage
2. Julianne Mwebaze
3. Diane Niyogusabwa
4. Aine Raymond
5. Gerald Ndobya
6. Muhanuuzi Dora
7. Mulindwa Fredrick
8. Daphne Musoki
9. Awino Mercy

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10. Kule Roland
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Relevant Statutes
1. The 1995 Constitution of the Republic of Uganda .
2. The Marriage Act, Cap 251
3. The Divorce Act, Cap 249
4. The Customary Marriages and Divorce of Mohammedans Act Cap 252
6. The Hindu Marriage and Divirce Act Cap 250
7. The Domestic Violence Act 2010
8. The Uganda Registration Services Bureau Act Cap 210
9. The Judicature Act Cap 13
[Link] Civil Procedure Rules as Amended.

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Cases
1. Uganda V. John Eduku (1975) HCB 35912
Principle: a customary marriage is not valid until the last instalment of bride price is paid in full or
unless it is waived off by the bride’s family
Brief Facts: the accused was charged with adultery and the state argued that he had committed
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adultery with a married woman. The father of the married woman gave evidence that the
complainant, her supposed husband and his daughter had not had their marriage solemnised since
the bride price was not fully paid and the complainant was supposed to pay 18 head of cattle. The
Chief Magistrate held that there was no prima facie case against the accused.
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On appeal by the DPP, the High Court held that since bride price had not been paid in full, no
customary marriage subsisted between PW2 and the complainant and the two could not be regarded
as husband and wife. Court stated that the fact that PW2 and the complainant lived together did not
mean that they were customarily married and the accused would not have known in the absence of
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any other evidence. The trial magistrate was correct in holding that there was no prima facie case
made out against the accused. On that basis, it was held that there was no valid marriage
customarily unless bride price was paid in full.

2. Alai V. Uganda (1967) E.A 596

Principle: The offence of adultery applies to all marriages recognized by Ugandan Law, even those
that are potentially polygamous.
Brief Facts: This was a case of adultery. The adulterer (appellant) and adulteress and her husband
(the complainant) were all Muslims and the marriage between the adulteress and her husband was
by Muslim rites. Issue was whether the offence of adultery applies to all types of marriage or
whether it is restricted to monogamous marriages only and does not apply to potentially
polygamous marriages (including Muslim marriages). Whether since muslim marriages are
potentially polygamous, any man having illicit sexual intercourse with a married muslim woman
can be said to be guilty of adultery. Held that “Any married woman” as used in the offence of
adultery must mean any woman who is married to any man irrespective of the form of such
marriage. The important point to note is that such a marriage must have been conducted in one of
the forms of marriage recognised by the people of Uganda, including marriages according to the
custom of the people. The phrase “married woman” is a term of art which confers on any woman a
special status in society as distinct from an unmarried woman. Anyone therefore who has sexual
intercourse with any married woman not being his wife would be guilty of the offence, irrespective
of the form of marriage, so long as the marriage is recognised by the law of Uganda.

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3. Ayoob V. Ayoob (1968) EA 72
Principle: A marriage contracted under one system of law cannot be dissolved under another
system of law
Brief Facts: The parties, both Mohammedans, were married under the Marriage Act of Kenya and
later on the same day went through a ceremony of marriage according to Mohammedan law. The
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husband later purported to divorce the respondent by “talak”, and by petition to the High Court
sought a declaration that his marriage was lawfully dissolved. Held that the first marriage was valid
and the subsequent muslim marriage was inconsequential for as long as the first marriage stood
undissolved. The proper procedure was thus to petition to dissolve the first marriage during the
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lifetime of the spouses by a decree of divorce under the Matrimonial Causes Act. Since it was not a
“Mohammedan marriage” within the meaning of the Mohammedan Marriage Act, it could not be
ended by Talak.
Contrast with Abdalla Hamid Mohamed v Jasnena Zaludova, 1983 TLR 314 [Held: The
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respondent's conversion to Islam had the effect of subjecting the parties’ rights and obligations
incidental to their marital status to Islamic law. if a change of domicile, which is a voluntary act,
may result in a change of status by reason of the application of a different system of law, it is
difficult to see why a change of religion, the domicile remaining unchanged, may not also result in a
change of status, if the law to be I applied is then different by reason of the difference of religion.
There is no principle of law that a marriage must be dissolved under the same system as that under
which it was contracted]

4. Kristina d/o Hamis V. Omari Ntalala (1963) EA 463

Principle: The law applicable to a christian (religious) marriage does not change by change of
religion of one party alone. A marriage cannot be converted from Christian to Muslim by change of
religion of just one party.
Brief Facts: The appellant petitioned for divorce from the respondent on the ground of his adultery
with his second wife whom he had married under Islamic law. The appellant had been married to
the respondent by a Christian ceremony and had also resided with the respondent for some time
after his second marriage, but had for about a year been living apart from him.
Held that the second ceremony of marriage was invalid and the relationship between the respondent
and his second wife was an adulterous one.

5. Ayiiya V. Ayiiya Divorce Jurisdiction Cause No. 08/1973

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Was a petition for dissolution of marriage contracted under lugbara customary law. The petitioner
paid the bride price of the respondent in instalments even after she was already living with him. She
ran away, and was later found out to be pregnant while away from home.
HELD
- The high court has unlimited original jurisdiction to entertain any suit based on customary law (as
it does in all matters).
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- The customary marriage (registration) act is silent on the procedure for obtaining a divorce under
customary law.
- In proceedings for marriage dissolution, the existence of marriage must be proved. If there is no
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marriage, there is no ground for action. An original marriage certificate or certified copies must be
presented, or evidence of a ceremony of marriage having been conducted followed by cohabitation
of the parties.
- Bride price refers to customary payments made by a man or his family to a woman’s family for
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her hand in marriage.

Where it is paid, it is prima facie evidence of marriage. It may also be dispensed with by the
parents. Where dowry has been paid only in part, the girl’s relatives may forego the balance either
expressly or by acquiescence. The fact that all dowry fixed and agreed was not paid would not
necessarily mean there is no valid marriage. The same depends on the customs of the sect.
- Payment of dowry is not an essential requirement but is of evidentiary value in the validity of a
customary marriage.
- The BoP for matrimonial offences lies on the petitioner and must be proved on a balance of
probabilities.
- The discretionary bars to divorce include adultery by the petitioner, unreasonable delay by him in
seeking the decree, cruelty to the respondent, desertion before the respondent’s adultery. The delay
in presenting the petition runs from when the petitioner became aware of the adultery, not mere
suspicion.
- What operates as a bar, absolute or discretionary, must be a matrimonial misconduct which would
render injustice to the other spouse or better still supply a ground for petition for divorce or judicial
separation.
- It is not legally desertion so as to act as a ground for judicial separation until that desertion as
defined in law, has run for a minimum of two years.
- In custody matters, the welfare and best interests of the child must be considered.
- On return of bride price, the same must be proved as custom of the land. I may be refunded in
material or in money’s worth.
- A husband’s duty to pay maintenance to his wife ceases when she commits adultery.

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6. Uganda V. Kato & Ors. (1976) HCB 204
The accused persons were accused of murder. One of the witnesses was the wife of one of the
accused persons with whom she had kids. He had not paid dowry or obtained the consent of the
parents. The issue was whether she was a wife and therefore non compellable.
HELD
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- The wife or husband of an accused is a competent but not a compellable witness for the
prosecution without consent of the accused.
- The test of determining what a customary marriage is, is whether the union is treated as a marriage
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by the laws or customs of the nation, race or sect to which the parties belong. The parties must have
satisfied all the formal and essential requirements prescribed for the validity of a marriage under
customary law. It does not matter whether the marriage was registered or not.
- The marriage was not valid. Dowry was not paid, and the consent of the parents was not obtained
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either.

7. FIDA(U) and 5 others vs Attorney General Constitutional Petition No. 2 of 2003

The petitioners challenged sections 4, 5, 22, 23, 26 of the divorce act in as far as they contravened
articles 31, 33(1) and (6), 21(1) and (2) of the constitution.
HELD
- It is glaringly impossible to reconcile the impugned provisions of the Divorce Act with our
modern concepts of equality and non-discrimination between the sexes enshrined in our 1995
Constitution.
- Under article 273 of the constitution, laws must be enacted with necessary modifications,
adaptations, qualifications and exceptions as may be necessary to bring them in conformity with the
constitution. If parliament has not made law, article 273 enables the court to modify existing laws
to prevent injustices.
- The constitution emphasises unity, peace, equality, and democracy. Freedom, social justice and
progress. Marriage is now an equal partnership between the husband and wife.
- There are no separate grounds for divorce between men and women anymore. All grounds of the
divorce are now open to both parties.

8. Tibenderana James Vs Reem AL-Torki Divorce Cause No.43 of 2012

The petitioner filed for divorce on grounds of desertion and custody of the child, on grounds of
desertion.
HELD

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- There are no separate grounds for divorce between men and women anymore. All grounds of the
divorce are now open to both parties.
- To prove desertion, there must be certain outward physical conduct the factum of desertion and
secondly, animus deserendi which is intention. Factum is the act of an absconding party in leaving
the matrimonial home. The contest is usually the intention. It must have been the intention of the
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party leaving the home to break it up for good.
- Custody of the child, consideration is given to the welfare principle.

9. Ayiko Mawa Solomon Vs Lekeru Annet Ayiko Divorce Cause No. 0001 of 2015
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Principle: Speaks to a valid Muslim Marriage.
Facts
The two went through a Nikkah ceremony and lived together. At the time they began dating, the
respondent was expecting another man’s child and on 13th October 2009 she was delivered of that
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child but attributed paternity to the petitioner in the relevant medical records. The couple then on
2nd December 2009 underwent a civil marriage at the office of the Chief Administrative Officer of
Arua District.
The petitioner however started suspecting that the respondent was in an adulterous relationship
while he was away for studies in Canada. The petitioner also realised that the child was not his. The
respondent on the other hand stated that the petitioner had equally committed adultery with a lady
and the two had sired two children together. They henceforth sought dissolution of this marriage.
Held
A Nikah is a valid Islamic traditional marriage ceremony whose essential requirements are; mutual
(consent) agreement by the bride and the groom; presence of a Legal guardian (Wali) for the bride
or his representative, (Wakeel); the presence of two adult and sane Muslim witnesses,
(Ash-Shuhud), who should be two males or one male and two females; and the payment of Mahr
(marriage-gift) by the groom to the bride either immediately (muajjal) or deferred (muakhkhar), or a
combination of both.

The Muslim Nikkah: STEP BY STEP

Marriage (nikah) is a solemn and sacred social contract between bride and groom. This contract is a
strong covenant "mithaqun Ghalithun" as expressed in Quran 4:21). The marriage contract in Islam
is not a sacrament. It is revocable, i.e. you can divorce!

A man, the groom does not have to have a wali at the time of the marriage contract, rather the man
is the one who enters into the marriage contract by himself. It is the woman who needs to have a

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wali, because the Prophet said, according to the hadeeth narrated by ‘Aa’ishah: “Any woman who
gets married without a wali, her marriage is invalid, invalid, invalid.” Narrated by al-Tirmidhi,
1102; classed as hasan by Abu Dawood, 2083; Ibn Maajah, 1879.

But if a man is feeble-minded, he has to have a wali (guardian). If he is of sound mind, however, he
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does not need a wali. So, in essence, both parties mutually agree and enter into this contract. Please
note. Both bride and groom have the liberty to define various terms and conditions of their liking
and make them a part of this contract.
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There is a strict condition for a Muslim woman. She may only marry a Muslim man and there is no
Nikkah if she marries a non Muslim. If she wishes to marry him, he must convert to Islam free
willingly. A Muslim man may marry a Christian or Jew faith woman so long as she does not
practise Shirk and does not believe in anything that is forbidden in Islam. A Muslim man is Not
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allowed to marry a non believing woman who follows any other faith such as Atheist, Hinduism,
Sikhism, Buddhism and so on. A word of advice, please avoid doing secret Nikkah or trying to play
the hero doing it swiftly by yourselves and without the blessings of the parents or close relatives
and guardians. You risk committing zinaa (Illegal sexual acts) as there may be no Nikkah in the first
place.

Set the Date of Nikah

First of all, after agreeing to get married, the couple need to consult each other's families and set a
date! Both parties should discuss their wishes and expectations before setting to work, deciding
upon a budget, and organising all that is required. Do you wish to hold the nikah at home or at the
masjid? Will you require a separate civil ceremony? Who will you invite? Where will you hold the
Walima? All this, and more, requires careful consideration. Remember the best wedding is
considered to be the one with the least expenses.

Al-Nikah: the Islamic Marriage Ceremony.

Let’s look at the basics. The nikah is a simple ceremony in which a man and woman declare their
verbal commitment to each other as husband and wife. It is a "contract" to which both must agree
and it is considered an act of worship (ibadah). In the very simplest form of the ceremony: there is
the Al-Ijab wal-Qubul (offer and acceptance) only, where the Wali (woman’s guardian in marriage)
offers the bride to the groom, who then accepts. One matrimonial party expresses “ijab" willing
consent to enter into marriage and the other party expresses “qubul" acceptance of the responsibility
in the assembly of marriage ceremony. (The Wali may say: “I give you my daughter / the girl in my

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guardianship in marriage in accordance with the Islamic Shari'ah in the presence of the witnesses
here with the dowry agreed upon. And Allah is our best witness.”) The husband-to-be replies with:
“I accept marrying your daughter/in your guard giving her name to myself in accordance with the
Islamic Shari'ah and in the presence of the witnesses here with the dowry agreed upon. And Allah is
our best witness.” The ceremony is then complete! Yes, over in just a few minutes!
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Al-Nikah: the Islamic Marriage Ceremony.
The nikah is a simple ceremony in which a man and woman declare their verbal commitment to
each other as husband and wife. It is a "contract" to which both must agree and it is considered an
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act of worship (ibadah). In the very simplest form of the ceremony: there is the Al-Ijab wal-Qubul
(offer and acceptance) only, where the Wali (woman’s guardian in marriage) offers the bride to the
groom, who then accepts. One matrimonial party expresses “ijab" willing consent to enter into
marriage and the other party expresses “qubul" acceptance of the responsibility in the assembly of
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marriage ceremony. (The Wali may say: “I give you my daughter / the girl in my guardianship in
marriage in accordance with the Islamic Shari'ah in the presence of the witnesses here with the
dowry agreed upon. And Allah is our best witness.”) The husband-to-be replies with: “I accept
marrying your daughter/in your guard giving her name to myself in accordance to the Islamic
Shari'ah and in the presence of the witnesses here with the dowry agreed upon. And Allah is our
best witness.”The ceremony is then complete! Yes, over in just a few minutes!

The requirements of Nikah

Primary Requirements:
1) Mutual (consent) agreement (Ijab-O-Qubul) by the bride and the groom;
2) Legal guardian Wali (Muslim) or his representative, wakeel, “representing "the bride;
3)Two adult and sane Muslim witnesses, (Ash-Shuhud), 2 males or 1 male and 2 females;
4) Mahr (marriage-gift) to be paid by the groom to the bride either immediately (muajjal) or
deferred (muakhar), or a combination of both.

Secondary Requirements:
1) Written marriage contract ("Aqd-Nikah") signed by the bride and the groom and witnessed by the
two adult and sane witnesses;
2) Qadi (State appointed Muslim judge) or Ma'zoon (a responsible person officiating the marriage
ceremony) usually the Imam. (However any trust worthy practicing Muslim can conduct the nikah
ceremony, as Islam does not advocate priesthood.);
4) Khutba-tun-Nikah (sermon) to solemnise or bless the marriage, this includes making Du'aa.

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The contract is written and signed by the bride and the groom and their two respective witnesses.
This written marriage contract (Aqd-Nikah) is then announced publicly. The marriage contract
documents are recorded with the masjid and registered with the local government, thus fulfilling the
civil obligations of the marriage. Without this, the marriage would not be recognised under the law
of the country you reside and the legal rights of the spouse, such as inheritance, couples and later
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their children rights would not be valid. You will note that it is not essential to have the couple
present in the same room during Nikah, just so long as the Wali and the Witnesses are there and
have witnessed everything and the bride has given her consent and permission. She may remain
silent. Meaning it's a Yes! She accepts.
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Announcement of the Nikah
Islam encourages its followers to announce a marriage and to celebrate this wonderful relationship
between a man and a woman. The nikah is also a social activity. The Prophet said: “Declare this
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marriage, have it in the masjid and beat the drums.” However, despite being a religious ceremony,
the nikah does not need to take place in a masjid. That is a matter of personal choice. However, you
will be required to hold a separate civil ceremony. Sometimes, men and women sit separately at the
nikah. They may be in a separate room or there may be a partition between them. Again, this is a
matter of preference.

Sermon
The marriage sermon (Khutbah-tun-Nikah) is a way of blessing the marriage and begins by praising
Allah ‫سبحانه و تعالى‬. “There is none worthy of worship except Allah and Muhammad is His servant
and messenger”, the Muslim confession of faith, is then declared. The main body of the sermon
comprises three verses from the holy Qur’an and one Hadith:
(O mankind! Be dutiful to your Lord, Who created you from a single person, and from him He
created his wife, and from them both He created many men and women, and fear Allaah through
Whom you demand your mutual (rights), and (do not cut the relations of) the wombs (kinship)
Surely, Allaah is Ever an All-Watcher over you).’ [ al-Nisaa’ 4:1],
(O you who believe! Fear Allaah as He should be feared, and die not except in a state of Islam (as
Muslims) with complete submission to Allaah.)’[Al ‘Imraan 3:102],
(O you who believe! Keep your duty to Allaah and fear Him, and speak (always) the
truth).’[al-Ahzaab 33:70].”
(Praise be to Allah, we seek His help and His forgiveness. We seek refuge with Allah from the evil
of our own souls and from our bad deeds. Whomsoever Allah guides will never be led astray, and
whomsoever Allah leaves astray, no one can guide. I bear witness that there is no god but Allah, and

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I bear witness that Muhammad is His slave and Messenger).
The ceremony draws to a close with Du’aa for the bride and groom, their families, the local Muslim
community and the Muslim community as a whole (ummah).

Mahr
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It is written in the Qur’an that mahr must form part of the marriage contract. The groom gives mahr
to his bride as a demonstration of his commitment to her and to providing for her. It can take the
form of money, property or possessions. There is no set amount, although moderation is
recommended, and the gift is agreed between the bride and the groom. “And give the women their
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dowries as a free gift, but if they are pleased to offer you any of it, accept it with happiness and with
wholesome pleasure.” [Qur’an 4:4]
The groom may pay the mahr before he marries, at the time of marriage, or at a later date, as agreed
with his bride. The mahr can even be postponed indefinitely. However, it will become payable
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immediately in the case of divorce or death. The amount and method of payment is written into a
contract, which is signed by the bride, groom and their witnesses. Following this, the Aqd-Nikah is
announced to all who attend the nikah. Traditionally, mahr would reflect the social status of the
bride’s family. However, these days, the giving of mahr is seen mainly as a symbol. No one wants
to begin married life burdened with debt and, equally, Islam does not wish to prevent men from
getting married simply because they cannot afford an expensive dowry.

Walima: the marriage banquet

The wedding banquet (Walima) is traditionally held by the groom after the nikah has taken place. It
may take place immediately following the nikah, on the following day, the following week or at a
future date, but the purpose of the banquet is for family and friends to share in the groom’s
happiness on the occasion of his marriage and to give thanks to Allah ‫سبحانه و تعالى‬. The Prophet
Muhammad encouraged Muslims to accept invitations to attend marriage ceremonies and marriage
feasts: “…and he who refuses to accept an invitation to a marriage feast, verily disobeys Allah and
His Prophet”. [Ahmad & Abu Dawood]. The Walima should not be wildly expensive. Islam
emphasises moderation and it is sensible to keep this in mind. No one should start their married life
with a huge debt, or to burden the families with debt, owing to an extravagant Walima. It is an
occasion to celebrate the happiness of the newlyweds and competing with what you may have
experienced at a friend or relative’s Walima will most likely lead to escalating costs and distract you
from the occasion. The Prophet said: “The best wedding is that upon which the least trouble and
expense is bestowed” [Mishkat]. The Walima gives family members and friends the opportunity to
congratulate the happy couple: the bride is congratulated by the women around her and by her

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family and friends; the groom receives the congratulations of men. The newlyweds are also
presented with gifts. It is believed that gifts given willingly will strengthen the relationships
between people. Therefore, it is important to keep gifts affordable. The Prophet said: “Exchange
gifts, strengthen your love of one another” [At-Tirmizi]

Other traditions
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Remember these are traditions and a cultural necessity in certain countries. It is not a requirement in
Islam. A mangni (engagement ceremony) may take place once the couple has accepted each other
for marriage. It provides an opportunity for the two families to come together and for the couple to
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exchange rings, if they so wish. This is not a religious requirement but a cultural. (Actually in Islam
there is no exchange of rings.) The outfit of the bride-to-be is traditionally provided by the groom’s
family. It is traditional, but not a religious requirement for the bride to hold a mendhi ceremony,
usually at home, shortly before the wedding. The groom’s family provides the henna, which is
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applied to the bride’s hands and feet. Following the application of mendhi, the bride does not leave
the house until the nikah. Her wedding clothes are also provided by the groom’s family. Please note
again: It is not a religious requirement for the bride and groom to exchange rings in marriage;
however it has become tradition and culture dictates it. Gold jewellery is acceptable for women
only, although silver rings may be worn by both men and women.

The wedding night

Anticipation of the wedding night can be a cause of wedding day nerves for most newlyweds, but
do try not to let any apprehension spoil your special day. If you know what is expected on this
special night, you can reduce the feelings of uncertainty. The Prophet Muhammad has described for
us ways in which the wedding night can be fulfilling and enjoyable. The Sunnah encourages the
groom to place his hands upon his wife’s head and to pray for her. In the words of the Prophet : “O
Allah, I ask You her goodness, and the goodness of the inborn dispositions which You have given
her, and I solicit Your protection from her evil, and the evil of the inborn dispositions which You
have given her” [Abu Dawud and Ibn Majah]. It is preferable that the groom leads his wife in two
raka’at (units of prayer) before asking of Allah what they wish for themselves. The Prophet also
suggested saying: “O Allah, bless my wife for me, and bless me for her. O Allah, unite between us
in good, and if you separate us, separate us in good” [Abu Shaybah]. The groom should treat his
bride with kindness and it is the Sunnah to offer her something to eat or drink.

2. Effect of contracting a marriage under the Marriage Act.

The implication of the second ceremony is that whereas the parties initially became husband and

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wife under a potentially polygamous marriage, the second ceremony converted that marriage into a
monogamous one. It ceased to be an Islamic marriage governed by The Marriage and Divorce of
Mohammedans Act, Cap 252 and turned into a civil marriage governed by The Marriage Act
Cap 251 and The Divorce Act, Cap 249.
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3. Standard of proof in divorce matters
Citing Kakunka Edward v. Aliet Yudesi Kyoyanga, [1972] HCB 208; Ruhara Mary (Mrs) v.
Ruhara Christopher [1977] HCB 86 and Habyarimana Veronica v. Habyarimana Perfect
[1980] HCB 139 that the standard of proof of adultery and cruelty is above the ordinary
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preponderance of evidence but not as high as beyond reasonable doubt.
As regards the allegation of adultery, direct evidence proving the fact of commission of adultery is
quite rare in divorce causes. At best, the evidence is mostly circumstantial. Ntabgoba, PJ, in
George Nyakairu v. Rose Nyakairu [1979] HCB, 261, commented thus; “in allegations of
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adultery, it is not necessary to prove the direct fact of adultery for that fact is almost to be inferred
from circumstances as a necessary conclusion since it is indeed very rare that parties are ever
surprised during the direct act of adultery.

3. Desertion
Referring to the Black’s Law Dictionary 9th Edition 2009, at page 211, the court defined desertion
as the wilful and unjustified abandonment of a person’s duties or obligations, especially to military
service or to a spouse or family. In Family Law the five elements of spousal desertion are
1) a cessation of cohabitation,
2) the lapse of a statutory period,
3) an intention to abandon. As to the animus there must proof of lack of intent to return and resume
the marital relationship. The respondent against whom desertion is alleged may testify as to intent
but cannot evade the effect of his or her conduct. The court ascertains the respondent’s intent by
considering all of the facts and circumstances. The passage of time in and of itself cannot constitute
an intention to desert. Intention to leave the home and break it up for good is to be determined in
each case from all the evidence on the record
4) a lack of consent from the abandoned spouse, and
5) a lack of spousal misconduct that might justify the abandonment.

4. Discretionary bars to divorce

Before pronouncing a decree nisi for the dissolution of the marriage, the court should be satisfied

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that there is no condonation, collusion or connivance between the parties. In Y. Mugonya v.
Trophy Nakabi Mugonya, [1975] HCB 297, it was stated that proof of condonation requires
evidence of forgiveness and reinstatement of the relationship, although further commission of
matrimonial offences revives the condoned offence.

5. Matrimonial Property
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Referring to Muwanga v. Kintu High Court Divorce Appeal No. 135 of 1997, Matrimonial
property was stated to be understood differently by different people. There is always property
which the couple chose to call home. There may be property which may be acquired separately by
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each spouse before or after marriage. Then there is property which a husband may hold in trust for
the clan. Each of these should in my view be considered differently. 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.
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The general practice of courts in presuming common ownership or co-ownership of property is in

respect of such property as is registered in the names of both spouses or property registered in the
names of one spouse but in respect of which there is evidence of the other spouse’s contribution to
the purchase of the property. In such cases, the spouses will be considered to be equal owners or in
some other proportions
But where both spouses contribute to the acquisition of property, then my own view is that they
intended to be joint beneficial owners, that is so whether the purchase be in the joint names or in the
name of one. This is a result of an application of resulting trust following the decision in Kamore
v. Kamore [2000] 1 EA 81
Referring to Echaria v. Echaria [2007] 2 EA. 139, stated that where the disputed property is not
registered in the joint names of the spouses but is registered in the name of one spouse, the
beneficial share of each spouse would ultimately depend on their proven respective proportion of
financial contribution, either direct or indirect towards the acquisition of the property and where the
contribution is not ascertainable but substantial it may be equitable to apply the maxim “equality is
equity”.

10. Julius Chama vs Rwalinda Mbabazi Divorce Cause No. 25 of 2011

Facts
The petitioner sought dissolution based on cruelty. The respondent cross petitioned on the basis of
cruelty, adultery and desertion. The respondent asserted that the petitioner committed acts of
adultery with diverse women more particularly a one Victoria and a one Margaret who according to
the Cross Petitioner boasted about the relationship. She catalogued acts of cruelty which include

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excessive verbal abuse, physical violence characterized by beatings and boxing, addictive drinking
which would drive the Respondent into feats of anger and aggressiveness towards the Cross
Petitioner. Furthermore, since May 2008, the Respondent has deserted her and their marriage. The
facts in the cross petition were uncontroverted.
Held:
M
In granting a dissolution of marriage, Courts look at the totality of the facts before it and determine
whether the facts lead to the finding that the marriage has irretrievably broken down and then
divorce is granted. (Also see Gershom Masiko Vs Florence Masiko Civil Appeal No. 8 of 2011)
Based on the fact that the evidence of the respondent was not controverted, the marriage had indeed
R
irretrievably broken down.

11. Han Herman Kock vs Victoria Kayecha Divorce Cause No. 6 of 2011
Wasn’t found
FI

12. Geroshom Masiko vs Florence Masiko Civil Appeal No. 8 of 2011

Held
Since the Judgment in FIDA V AG, there has not been statutory amendments to provide for this
development, and the practice of courts therefore has been to adopt either the view of the
Constitutional Court in FIDA case (supra) that all grounds are equally available to spouses who
seek divorce, or, that the provisions of Section 4 have been expunged altogether. Therefore Courts
look at the totality of the facts before it and determine whether the facts lead to the finding that the
marriage has irretrievably broken down and then divorce is granted.

13. Sumaya Nabawanuka vs Med Makumbi Divorce Cause No. 39 of 2011

Article 129 and 274 of the Constitution & Section 2 of the Marriage and Divorce of
Mohammedans Act Cap 252
Principle
- Whereas indeed it’s true that Qadhis Courts envisaged under Art 129 (1) (d) of the Constitution
have not yet been established, I do not agree with Ms. Nebankema's view that the Sharia Courts
currently operating are operating outside the law. My position is premised on the import of Article
274 of the Constitution, consequently my view is that the Sharia Courts of the Muslim Supreme
Council are operating within the law and are competent courts to handle divorce cases and grant
relief.
- Section 18 of the Marriage and Divorce of Mohammedans Act is that whereas it empowers the
Court to handle divorce matters under the Act, the law applicable in such cases must be

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Mohammedans law.

14. Hyde vs Hyde (1866) LRPD 131

Principle
- Marriage as understood in Christendom may be defined as the voluntary union for life of one man
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and one woman to the exclusion of all others.
- Lord Penzance found that marriage institution in foreign countries cannot be considered as valid
under English law, unless they resemble the equivalent English institution. With respect to
marriage, English law could therefore not recognize either polygamy or concubinage as marriage.
R
Similarly, he found that cultural tradition of which the court had no knowledge could not form the
basis for a court decision. Lord Penzance stated: “it does not follow that because the consequences
of a marriage in Utah and in England are different; the marriage in Utah is not to be recognized as
valid in England. The validity of the marriage must be determined by the law of the place where it
FI

was contracted; the consequences of the marriage depend upon the law of the country where the
parties reside, whether temporarily or permanently, after the marriage.

15. Nassanga vs Nanyonga [1977] HCB 314

Principle
Where parties belong to the same tribe the proper law is the law of the tribe to which they belong in
matters of moveable property and interpersonal issues. As the instant case related to Marriage and
dowry, the proper law was the law of the tribe to which the parties belonged, the law of the tribe to
which the parties belonged. Customary marriages are strictly governed by the customs of the parties
to the marriage (in particular the customs of the woman) because it is a strict requirement that the
marriage be celebrated under the customs of the girl. A child belongs to the tribe to which his or her
father belongs and it is the father entitled to his daughter’s dowry. In absence of the father and a
daughter’s patrilineal male relatives, then the mother is entitled to the dowry. This is because the
mother like the father would be entitled to dowry as dowry is a form of appreciation to the parents
for begetting the daughter to whom the bridegroom is betrothed.

16. Kintu vs Kintu Divorce Cause No 135 of 1997

Principle
- Non-registration does not invalidate a customary marriage. Therefore failure by the parties to
register their marriage should not prevent them from pursuing remedies based on their marriage if
it’s proven to have taken place. It is now settled law that in all matrimonial causes, marriage must
be proved. If it’s customary and there is no marriage certificate, by evidence that according to the

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customs and the laws of a given tribe, a marriage exists in Uganda. It can be proved by cohabitation
of the parties which occurs after proof of the ceremony.
- When parties make a choice and opt to be governed by customary law in their Marriages, they are
presumed to have made an undertaking that before, during and after their Marriages, they will be
governed by the same rules, there is need to prove the grounds that satisfy divorce under Customary
Law.
M
17. Mifumi (U) Ltd vs Attorney General Supreme Court Constitutional Appeal No. 02 of
2014
R
This was a petition to declare the marriage custom and practice of demanding bride price and its
refund in the case of marriage breakdowns, unconstitutional. It was an appeal from the
Constitutional Court where the constitutionality of bride price was challenged at first instance.
Held;
FI

a) Bride price does not fetter the free consent of persons intending to get married and, consequently,
is not in violation of Article 31(3) of the Constitution. It is a voluntary exchange of gifts between
the groom to be, bride to be and their respective parents.
b) However, the demanding for any “gifts” by the parents of the girl intending to marry and their
payment, which “gifts” in essence form the bride price, and the making of the payment of these
gifts a condition precedent to a valid customary marriage, unconstitutional.
c) The custom of refunding bride price however, as a condition for the dissolution of customary
marriage is unconstitutional and violates Articles 31(1) and (2), and is accordingly prohibited.
d) The payment of bride price as a condition precedent to a valid customary marriage, and of its
return as a condition precedent to the dissolution of a customary marriage which has been
demanded for by a woman’s parents and/or relatives, undermines the dignity and status of women
and is therefore inconsistent with Articles 32(2), 33(1) and (4) and 21(1) and (2) of the
Constitution.

18. Kiwuwa vs Serunkuma and Another High Court Civil Suit No. 52/2006
The plaintiff instituted a suit to prevent the celebration of the church marriage of the first and
second defendants on the ground that both defendants, like the plaintiff, being Baganda by tribe,
belonged to the same clan.
He argued that such a marriage “is abominable, immoral, unethical, uncustomary and illegal”.
Further, on the basis of the right to culture under Article 37 of the 1995 Constitution of Uganda, the
court was enjoined to enforce the custom in issue as the same was the right of the Baganda as a
tribe. On their part, the defendants argued that a marriage between the two of them as clan-mates

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would merely be culturally repugnant but not illegal under the Marriage Act, Cap. 251 as the
written law on prohibited degrees of consanguinity did not cover this legal aspect.
Issue
a) Whether or not the defendants, being Baganda by tribe and being members from the same
‘Ndiga’ clan, can lawfully contract a marriage under the Marriage Act, Cap. 251 or any other laws
of Uganda.
M
Held;
There was no provision in the Marriage Act that excludes the observance of a customary law and
practice by those intending to contract the type of marriage the Marriage Act allows.
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Justice Remmy Kasule observed that: “Because of the fact that over time, since the advent of the
colonial era and Christianity, native Ugandans kept to their customs in marriage, it became
necessary for the religions to give due recognition to some of these customs in the celebration of
marriage.”
FI

He further observed that as such, ‘a marriage under the Marriage Act became a combination of both
what is religious and what is customary although remaining a church or civil marriage’.
The judge then concluded that although not within the prohibited degrees of consanguinity,
compliance with customary practice was a valid procedural requirement for the solemnization of a
marriage under the Marriage Act. Accordingly, judgment was entered for the plaintiff, declaring
that the first and second defendant’s intended marriage was illegal, null and void by reason of the
custom that, being Baganda by tribe both belonging to the same clan “Ndiga”, they could not
lawfully contract a marriage as between themselves.

19. Mwangiru v Mumbi [1967] EA 639

This was a petition for a declaration that there was a valid and subsisting marriage between himself
and the defendant, by Kikuyu custom.
Issues;
a) Necessary formalities for customary marriage under Kikuyu custom.
b) Whether consent of the bride is necessary.
The petitioner argued that he had married the defendant, had even lived together and he had paid
her bride price. The Defendant contended that no marriage existed because she had not given her
consent and not even been present at the essential ceremonies. In any case, she had run away from
the petitioner and contacted a civil marriage with another man.
Held;
The signifying of consent of the bride is necessary at all the stages in the customary ceremonies

X
which are vital to a regular Kikuyu marriage. It was on evidence that the defendant was not present
and consenting at at least of these stages. Thus, the petitioner failed to prove his case.

20. Nderitu vs Nderitu [1995-1998] 1 EA 235

This was an appeal from the trial judge’s decision to award division of matrimonial property on a
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30% - 50% basis for the wife and husband respectively. The trial judge had recognized her financial
contribution to the assets they had acquired, but said that due to the effect of having undergone 3
C-sections, this had reduced her capacity to substantially contribute. The respondent argued that
since they were married under Kikuyu custom, then the Married Women’s Property Act did not
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apply to their case.
Held;
The marriage under Kikuyu custom did not stop the MWPA from applying to the case. Its
application did not discriminate between statutory and customary marriages. As such, S.17 of the
FI

Act required the wife to prove that she was indeed married to the man at the time of the case, that
the property in question had been acquired during the subsistence of the marriage and that she had
contributed whether directly or indirectly. In fact, the language of the provision did not limit it to
only property acquired during the marriage, but to all property.
In determining the contribution, the court needs to assess the value of the wife’s non-monetary
contribution in order to determine her interest in the suit property.
The trial judge had no scientific basis to determine that the C-sections incapacitated the wife to the
level of reducing the value of her contribution. In any case, what better contribution can there be to
a family than bearing children!
There was evidence that she had made an equal contribution (albeit indirect) and therefore was
entitled, across all boards, to equal share of the matrimonial property.
 21. Zainabu vs Zainabu [1973] EA 280
Brief Facts: The appellant and respondent were Sunni Mosley of the Shafi'i sect. Appellant apple to
Court for an order that her husband be forced to divorce her on grounds of cruelty and construction
destination on grounds of cruelty and drove her away telling her she was no longer of any use to
him.
Held:
Constructive Desertion: Since they are Sunni Shaffi Muslims, the law pertaining to them should be
applied to them. According to that law, construction desertion is an alien concept that is not
recognized. In these circumstances if the man was indeed beating her he would only be guilty for
cruelty.

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On Talaq: The court cannot compel a husband to pronounce talaq to his wife. It is illegal and
incompetent. That the wife actually sought for faskh (dissolution of marriage) and not talaq. That
for this case all court is to determine whether a matrimonial offence was committed and if so
dissolve the marriage.
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22. Rwabinumi vs Bahimbisomwe Supreme Court Civil Appeal No. 10 of 2009
Brief Facts: The appellant was challenging the division of property by the High Court and upheld
by the Court of Appeal.
Issues:
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• What amounts to contribution to earn a spouse a share in the property?
• What amounts to matrimonial property?
Held: Citing Muwanga v Kintu and Kivuitu v Kivuitu; That it can be direct and Monetary or
indirect and non-monetary. These cases recognize not only a spouse's indirect contribution but also
FI

non-Monetary contributions which enable the other spouse to either acquire or develop the property.
Matrimonial Property is property parties chose to call home and which they jointly contribute to.
On division of property: Parties are given shares of property equivalent to the contributions that
they made. Where the property was jointly acquired during the subsistence of marriage, the courts
have awarded 50% shares for both parties. Article 31 (1) (b) of the Constitution of Uganda state
constitutional production on the baiss of sex which is enshrined in Articles 21 and 33 of the
Constitution. The constitution, while recognising the right to equality of men and women in
marriage and at its dissolution also reserved the constitutional right of individual, being married or
not, to own property either individually or in association with others under Article 26 (1) of the
Constitution. Had the drafters of the Constitution wanted to take away the right of married persons
to own separate property in their individual names, they would have explicitly stated so.
 23. Kamweru vs Kamweru [2003] 2 EA 484
Brief Facts: The appellant had filed a divorce petition in the High Court seeking dissolution of his
marriage to the respondent on the ground of adultery with the 3 co-respondents. The High Court
found that there was no adultery hence appeal.
Issue; What is the burden of proof for cases of adultery?
Held: Burden of Proof in cases of adultery is beyond reasonable doubt but it is not as strict as that
in criminal cases. Standard of Proof is on the preponderance of doubt which simply means that the
court should be satisfied as to be sure that there was a martial offence committed.

24. Kivuitu vs Kivuitu [1990-1994] HCB

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Brief Facts: The appellant sought for the family house to be sold and the proceeds are shared
equally upon divorce.
Issue: What is the nature of the contribution that a wife or husband has to make before she can be
held to have acquired a share in the matrimonial home?
Held: That it is written nowhere that the contribution must be monetary. Contribution to acquisition
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of property can be in the form of direct monetary contribution and indirect non-monetary
contribution. Non-monetary contribution includes taking care of the children, looking after crops
etc even if it can't be quantified in Monetary terms. These contributions are important because they
help the salaried husband acquire the property. Therefore in these ways, together wit salaried
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husbands both contribute to the property. Both their names can be registered for the property. If a
husband registers property in his name solely, then the wife has a right to apply for her share and
the court assesses her non-Monetary contribution.
FI

25. Kazibwe vs Kazibwe Divorce Cause No.3 of 2003

FACTS
Petitioner filed a petition for a decree nisi for dissolution of marriage on grounds of adultery and
cruelty
NB; This matter was brought before the judgment in FIIDA was delivered.
Held
Section 8 of the Divorce Act, if the court is satisfied that the petitioner’s case has been proved …the
court shall pronounce a decree nisi for dissolution of marriage.
Adultery can be proved by the petitioner by adducing direct circumstantial evidence and proving it.
It can also be proved by admission on the part of the party against whom it is being alleged.
Once a fact has been admitted it need not be proved and the person making the claim is entitled to
judgment upon admission. The standard of proof in matrimonial matters is one that is higher than
what is ordinarily required in other civil matters but not as high as beyond reasonable doubt as
required in criminal cases. Decree Nisi was granted.

26. Mayambala vs Mayambala Divorce Cause No. 3 of 1998

FACTS
Petitioner filed a petition against her husband seeking orders of dissolution on their marriage and
custody of children on grounds of adultery and cruelty.
Held
Adultery can be defined as voluntary sexual intercourse between a married person ad a person of

X
the opposite sex, the two persons not being married to each other.
To be a ground of adultery, it must be committed since the celebration of marriage. It is immaterial
whether the marriage has been consummated or not.
In the facts, the respondent has a child out of wedlock who was born after their marriage and has on
many occasions slept with other women.
M
Cruelty may be defined as willful and unjustified conduct of such character as to cause danger to
life, limb or health (bodily or mental) or give rise to reasonable apprehension of such danger. To
constitute cruelty, the conduct complained of must be serious. It must be higher than the ordinary
wear and tear of a married [Link] is therefore the effect of the conduct rather than the nature which is
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of paramount importance in assessing the charge of cruelty. It must be proved that the respondent,
however mindless of the consequences, has behaved in a way that the petitioner could not in the
circumstances be called upon to endure and that such conduct caused injury to the health or
reasonable apprehension.
FI

Having proved the ground of adultery coupled with cruelty under section 5(2) of the Divorce Act
and absence of collusion, accessory to or condonation and connivance eon the part of the [petitioner
or any counter charge under section 7 and 8 of the Act, the petitioner is entitled to the first order
towards dissolution of the marriage. Decree Nisi granted.
Custody of children given to the mother and the father should pay for education and 50%
maintenance.

27. Vivian Ntanda vs James Kayemba Divorce Cause No. 4 of 2007

FACTS
The petitioner petitioned for dissolution of marriage on grounds of cruelty. Respondent while
admitting physical confrontation on three occasions blamed them on the petitioner’s provocation.
Held
Following the FIDA case, all grounds of divorce under the Divorce Act are equally available to
both the husband and wife and adultery and cruelty are distinct grounds and each of them may lead
to a decree being granted.
No comprehensive definition of cruelty has been accepted as satisfactory, much depends on the
habits and circumstances of matrimonial life of the husband and wife and their characteristics and
normal mode of conduct one to the other and knowledge which each has of intentions and feelings
to the other.
The party seeking relief must prove actual or probable injury to the life, limb or health. For this
reason, it is seldom that a decree is granted upon a single act of cruelty, though should the act be
enough and result in injury, the court will grant a decree. Therefore, even one incident of assault

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cruelty as to warranty dissolution of marriage can be established.
According to Bromley’s Family law 3rd Edition pg. 95 there is no need for injury to be actually
suffered. A reasonable apprehension that injury will result if the conduct is persisted, I will suffice
for the court will not wait for the petitioner to be actually injured affording him/her relief.
Ground of cruelty was established.
M
28. Kagga vs Kagga Divorce Cause No. 11 of 2005
The supreme court recognized unmonetized contribution of a wife where Justice Mwangusya
observed that “our courts have established a principle which recognizes each spouse’s contribution
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to acquisition of property ad this may be direct, where the contribution is monetary or indirect
where a spouse offers domestic services…when distributing the property of a divorced couple, it is
immaterial that one of the spouses was not financially endowed as the other as is showed in this
case.
FI

That while the respondent was the financial muscle all the wealth, they acquitted the contribution of
the petitioner as no less important than that made by the respondent.

29. Semiga vs Sempiga Musajjawaza Divorce Cause No. 007 of 2005

Unreported but cited in Rwabinumi v Bahimbisomwe as follows;
Our courts have established a principle which recognizes each spouse’s contribution to acquisition
of property and this contribution may be direct, where the contribution is monetary or indirect
where a spouse offers domestic services. …When distributing the property of a divorced couple, it
is immaterial that one of the spouses was not as financially endowed as the other as this case clearly
showed that while the first respondent was the financial muscle behind all the wealth they acquired,
the contribution of the petitioner is no less important than that made be the respondent.”
…despite the Judge’s finding that the wife had only rendered domestic services, as opposed to the
respondent husband who was “the financial muscle behind all the wealth, he awarded the wife,
among others, a 50% share in a Farm measuring 154 acres.

30. Annet Kironde vs Apollo Kironde Divorce Cause No. 6 of 2001

The petitioner filed for divorce on grounds of adultery, desertion and cruelty on her and the
children. Although the petition only relied on adultery.
HELD Rwamisazi-Kagaba J
➢ Section 4(2) and 5 of the Divorce Act on grounds of marriage are inconsistent with the
Constitution in that they create different sets of rights, opportunities and treatment for men and
women to the same institution of marriage. The principle of equal rights would thus dictate that the

X
wife may sue for divorce on the ground of adultery alone, in the same way as the husband is entitled
to so under the same sections.
➢ Section 22 of the DA provides for the co-respondent to pay costs to the petitioner (incase
petitioner is the husband) where adultery with the wife has been proved. Held to be in conflict with
the constitution as it seeks to punish an adulterous wife while the husband walks scot free.
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Discriminatory and targeting women.

31. Nyakairu v Nyakairu [1979] HCB 261

Appeal against order granting custody of his three children in a divorce petition to the respondent.
R
HELD; Ntabgoba, Ag. J
➢ Section 29 of the Divorce Act – court may at any stage of proceedings make such order as I
thinks fit in respect to the custody, maintenance, education of minor children. A court can grant
custody to any of the parents and order the other to provide for maintenance of the children
FI

➢ Although the underlying principle in all custody cases was that the welfare of the children was
paramount, the courts in applying this principle had to consider other ancillary circumstances.
These included for example such matters as to who of the spouses was to blame for the breakup,
who was more financially equipped to look better after the interests of the interest and which of the
spouses could provide a more comfortable home.
➢ In allegations of adultery, it is not necessary to prove direct act of adultery for the fact was
almost always to be inferred from the circumstances as a necessary conclusion since it is indeed
true that parties were ever surprised in the act of adultery.
➢ Immorality can be a sufficient ground for interfering with a father’s common law right to
custody of his children unless such immorality was very fragrant or was coupled with other habits
injurious to the children.
 32. Habyarimana vs Habyarimana [1980] HCB 139
Petitioner filed for dissolution and custody of their children. Her grounds were that the respondent
was adulterous, cruel to her which was causing her physical and mental stress and that he had
removed the children from the care of the petitioner.
HELD; Odoki, J.
➢ Definition of adultery (Relied on Halsbury’s Laws of England, 3rd Edition para 444) –
Consensual sexual intercourse during the subsistence of the marriage between one spouse and a
person of the opposite sex not being the other spouse. It is sexual intercourse between two persons
of whom one or both are married, but who are not married to each other.
➢ Adultery as a criminal offence is committed when a man has sexual intercourse with any married

X
woman who is not his wife or where a woman has sexual intercourse with a man who is not her
husband. It is therefore not a criminal offence for a married man to have sexual intercourse with an
unmarried woman (See Sec. 154 of PCA) but such conduct amounts to the matrimonial offence of
adultery.
➢ The BOP lies throughout on the person alleging it there being a presumption of innocence.
M
➢ On SOP, it is trite that an allegation of adultery must be proved to the satisfaction of the court
that is beyond reasonable doubt. However it seems that the judge interpreted this rule widely in
stating that the BOP in divorce proceedings is beyond reasonable doubt. Available authority
suggests that such burden is indeed to the satisfaction of court and this has been held to mean not
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beyond reasonable doubt but on the preponderance of probability although the degree of probability
is higher than in ordinary civil suits, it’s not as high as in criminal cases.
➢ To constitute adultery, the conduct must have the effect of producing actual or apprehended
injury to the petitioner’s physical or mental health. The conduct complained of must be serious. It
FI

must be higher than the ordinary wear and tear of married life. It is therefore the effect of the
conduct rather than its nature which is of paramount importance in assessing the charge of cruelty.

33. Hough vs Hough Divorce Cause [L. A. No. 19234. In Bank. June 26, 1945.
The case involved married British nationals that were domiciled in Uganda. They had been living in
the UK but had since relocated to Uganda. In this matter, the question of domicile was raised as a
preliminary point in order to determine under what law their divorce proceedings would be handled.
It was argued for the respondent that the laws of England should apply since the domicile of the
husband determined that of the wife.
In Uganda, the Constitution prohibits discrimination on grounds of inter alia sex – Article 21; while
Article 33(1) states that woman and man have equal rights and further, under Article 31(1)(b), man
and woman are equal before, during and after marriage. The common law position of dependent
domicile is untenable in the face of the provisions on equality and non-discrimination in the
constitution. A married woman is free to choose her domicile.

34. Richard Irumba vs Florence Irumba Supreme Court Civil Appeal No.45 of 1995
This case was about the applicability of UK Legislation in Uganda. The respondent sought to have
their divorce matter brought immediately after one year of their marriage as opposed to the position
in Uganda which provided for three years. It was the case for the respondent that Ugandan courts
had to apply the law as was in England – which had been reduced to one year. [Citing Nyali v AG
– 1955]; it was opined that:
It is recognition that the common law cannot be applied in a foreign land without considerable

X
qualification. Just as with an English Oak, so with the English Common Law. You cannot transplant
it to the African continent and expect it to retain the tough character which it has in England. It will
flourish indeed but needs careful tending. So with the Common Law. It has many principles of
manifest justice and good sense which can be applied with advantages to peoples of every race and
colour all over the world. But it also has many refinements and subtleties and technicalities which
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are not suited to other folk. These off shoots must be cut away. In these far off lands the people
must have a law which they understand and which they will respect. The common law cannot fulfil
this role except with considerable qualifications. The task of making these qualifications is
entrusted to the Judges of these lands. [Consider Sec 14 (3) of the Judicature Act, Cap 13]
R
35. Doreen Kirungi vs Ronald Mugabe Divorce Cause No. 48 of 2013
The case was concerned with the dissolution of the marriage, custody as well as maintenance of the
children. The case for the petitioner was that their marriage had irretrievably broken due to the
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respondent’s desertion and cruelty (beating and abusing). However, since the respondent was
agreeable to the dissolution, the focus was towards custody:
The cardinal principle on who to grant custody of a child of this nature (3 years) is the welfare of
the child. At her tender age, the child needs to live with the parent who has cared for her since she
was born rather than the parent who has been absent from her life. [Consider also; sec 3 of the
Children’s Act]

36. Namuyimba Proscovia vs David Ralph Pace Divorce Cause No. 14 of 2017
This was a petition for divorce and subsequent dissolution of the marriage between the couple. The
case for the petitioner was that the respondent had deserted her for three years since he refused not
to come to Uganda where they had agreed to relocate to from China. It was also established that the
respondent had committed adultery with another woman.
The desertion on the part of the respondent is unreasonable by virtue of his refusing to return to
Uganda in accordance with the arrangement between the two – consequently depriving the
petitioner of her conjugal rights as the respondent’s spouse.

37. Haji Musa Kigongo vs Olive Kigongo. High Court Civil Suit No. 295/2015
The two parties had been living together for 26 years as husband and wife. When the relationship
became sour, the “husband” sought to have the respondent evicted from the “matrimonial home”
just like any other trespasser. It was the case for the respondent that she was married to the
respondent and as such could not be evicted from the home that she had contributed to insofar as

X
construction as well as tendering was concerned. Court found in her favour:
Save for the lack of sufficient proof that the two were married, the defendant relied on the assurance
by the plaintiff that she was his wife and had a home for life. Until the relationship took another
turn, the plaintiff had never objected to the defendant being his “wife”. The two parties behaved and
intended to live like a married couple. They shared the suit property as their ‘matrimonial home.’
M
Premised on equity, it is only fair that the defendant is entitled and has an interest in the suit
property based on her financial as well as her other non-monetary contributions such as time and
presence during the construction of the house.
R
FI