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POLICY GARAGE

Assessing the Marriage and Divorce
Bill (MBD)

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Introduction

The
Bill was tabled in 2003 as the Domestic Relations Bill as a product of studies
and recommendations by FIDA- Uganda, Ministry of women in Development, Culture
and Youth and Uganda Law Reform Commission but was rejected by the Muslim
community opposing the provisions that were banning polygamy. In 2006,
Parliament rejected the Bill and hence split it into the Muslim Personal Law
Bill, which covers Muslim marriages, and the Marriage and Divorce Bill for the
other religious denominations. In 2009, the Bill was tabled for the fourth time
in Parliament as the Marriage and Divorce Bill. However, the it attracted mixed
reactions amongst MPs which resulted into failure to register any success.

 

Status of the Bill

In March 2013 the Speaker
of Parliament requested Members to go and consult their constituents on the
Bill. In the consultations, most media reports suggested that it was to be
rejected. The Bill received opposition from among others the Uganda Joint
Christian Council which claimed that it offered inducements for divorce, turned
cohabitation into marriage, and made a woman and a man equal in the marriage
setting, are contrary to the Christian teaching while feminist groups supported
it.

 

 In February 2015, the Speaker resurrected the
Bill notifying MPs that passing the Marriage and Divorce Bill is one of the
outstanding issues Parliament had to consider in its session.  However, no success was registered as some
activists and religious leaders uttered that the speaker had resurrected a very
dangerous Bill while most Feminists were jubilating. While
opening the Second session of the 10th Parliament, the Speaker
told the members that the contentious Bill which has languished in parliament
for 0ver 10 years should be given priority by the August House .Parliament is set
to start receiving views on the Bill and later debate on it immediately.

Why
it has still failed/ Controversial clauses

The
Bill has faced strong opposition especially from religious leaders among others
on the different clauses in the Bill each religious denomination protecting its
values which are abused or will be eliminated by the Bill when it succeeds into
a law.

Polygamy

The
Bill recognizes Polygamous marriages as legal in Uganda. According to Clause 3 (interpretation)
of the MDB, a polygamous marriage is defined as “a marriage in which a man is
married to two or more than one wife.” It goes on to define a potentially
polygamous marriage as a marriage between a man and a woman in which the man
has the capacity to contract another marriage during the subsistence of the
first marriage, but has not yet done so. According to the these definitions,
it’s very clear that in polygamous marriages, it’s men who are permitted to
have more than one wives and women were left out thus discrimination against
women.

This
violates Article 21 of the Constitution of Uganda which provides that all
people are equal before the law regardless of sex and Article 31 of the Constitution
of Uganda which provides that men and women of the age of eighteen years and
above have the right to marry and found a family and are entitled to equal
rights in marriage, during marriage and at its dissolution.

 At the international level, it violates
Article 23(4) of the International Covenant on Civil and Political Rights
(ICCPR) which provides that States Parties shall take appropriate steps to
ensure equality of rights and responsibilities of spouses as to marriage and
its dissolution. It also goes against Article 16(1) of the Universal
Declaration of Human Rights (UDHR) which provides that men and women of full
age, without any limitations due to race, nationality or religion, have the
right to marry and to found a family. This clause also abuses Article 3 of the
African Charter on Human and People’s Rights (ACHPR) which calls for equality
of all persons before the law and entitles all people to equal protection of
the law.

Bride Price                                                           

The
MDB recognizes the institution of “bride wealth” as legal. However, Clause 14
of the Bill provides that it shall not be an essential requirement or any
marriage under the Act and that it’s an offense to demand for the return of a
marriage gift. In Clause 3 of the Bill, a marriage gift is as a gift by
whatever name known, in cash or in kind given by either party to marriage in
respect of that marriage and includes bride price and bride wealth.

This
goes against the tradition of bride price in Uganda according to most cultures
were bride price was supposed to consist of gifts given to the parents of the
bride in appreciation of their role in the bride’s upbringing. Bride wealth has
also been defended as an institution that serves to protect the wife against
abuse from the husband, stabilize the marriage and join the two families’
together.

Matrimonial Property

This
is one of the most contentious and most comprehensive clauses in the Bill. The
Interpretation section says that matrimonial property shall be given a meaning
in Clause 116 of the Bill which refers s to Clause 115 which gives a list of
the things that shall be included in matrimonial property. Clause 115(c) of the
bill states that matrimonial property includes any other property either
immovable or movable acquired before or during the subsistence of a marriage
deemed to be matrimonial property by express agreement.

 

Prenuptial Agreements

This
appears in Clause 117 of the MDB which provides for agreements prior to
marriage or cohabitation that partners may enter into, regarding the
acquisition and sharing of property in their marriage/ cohabitation. Individuals
contemplating marriage would be free to make agreements as to their property
under this clause and such contracts would be valid and enforceable before
courts of law in Uganda. This would limit cases of unjust enrichment of one
spouse in case of divorce at the expense of the spouse who came into the
marriage financially stable and owning wealth as the property would be divided
in accordance with the prenuptial agreement.

Same sex  

The
2005 Constitutional Amendment Act amended the constitution and added Article
31(2a) which prohibits marriage between persons of the same sex. Section 18 and
40 of the Marriage and Divorce Bill prohibit same sex Civil and Christian
marriages. However, Hindu, Bahai and Customary marriages were not mention in
the Bill.

Divorce

Currently,
in divorce cases, courts only the party petitioning for divorce to prove one
ground i.e. either adultery, cruelty, or any other of the grounds listed in the
Divorce Act to secure a divorce. Clause 144 of the MDB provides irretrievable
break down of marriage as the only ground upon which a party may petition for
the dissolution of that marriage. In this case, parties need to present
sufficient evidence to convince the court that the marriage has irretrievably
broken down and no need for proving any wrong doing on part of the other.

 Time of Divorce

Clause
140 of the Bill bars any divorce proceedings before the expiry of 2 years from
the date of marriage. However, Clause 145 asserts irretrievable break down of
marriage as the sole ground for divorce. In this case, Clause 140 defeats the
purpose of Clause 145 which rises serious concern on what happens if a marriage
irretrievably breaks down before two years elapse or incases diseases such as
HIV/AIDS.

Cohabitation

The
Interpretation Clause (3) of the Bill defines Cohabitation to mean a man and a
woman living together as husband and wife. This is a very wide and ambiguous
definition and it was one of the most contentious issues in the Bill when it came
before Parliament in 2013. This clause has faced strong opposition most
especially from religious who claim it distorts the Godly institution of
marriage.

Jurisdiction of Local Council
Courts

Clause
134(2) of the MDB gives jurisdiction over matrimonial causes arising out of
customary marriages to Local Council Courts. This provision expands
jurisdiction over divorce cases beyond section 3 of the Divorce Act Cap 249
which provides that where all parties under this Act are Africans or where a
petition for damages only is lodged I accordance with section 21, jurisdiction
may be exercised by a court over which preside a Magistrate grade 1 or a Chief
Magistrate. In all other cases, jurisdiction shall be exercised by the High
Court only.  Such jurisdiction shall,
subject to this Act, be exercised in accordance with the law applied in
matrimonial proceedings in the High Court of Justice in England.

Views of persons on the Marriage
and Divorce Bill

President
Yoweri Museveni convinced that the Bill will provide a good family. However, he
insisted that if some of the provisions in the Bill are not thought out well,
they may cause disharmony in the society. He agreed with the Bill on grounds of
marital rape and said it was criminal for someone to rape a wife and also
suggested to make the clause more focused. The President also advised the
Speaker to go slow on issues concerning this Bill as it may cause havoc in the
country.

Archbishop
Stanley Ntagali uttered that marriage is the foundation of unity in our country
so the Bill should be passed carefully to avoid problems in the future. He condemned
the Cohabitation Clause and said to should not surface anywhere in the Bill
because it’s not a type of marriage.

Mrs.
Miria Matembe (woman activist) supported the Bill and said it is intended to
protect the families not to break the marriages. She attacked religious leaders
for condemning the Cohabitation clause and lamented that sixty percent of all
couples in the country are cohabiting literally meaning the church failed to
play their part. She advised church leaders to aggressively mobilise couples cohabiting
and entice them to wed and also find the root cause of cohabitation in
families. She said that religious leaders do not have a right to stop the
government to make laws to protect the citizens.

Yasin
Mugerwa (journalist) argues that the Bill in its current form distorts the
Godly institution of marriage by legalizing cohabitation and encouraging
divorce. He further said the Bill is a recipe for domestic violence. He
suggested for dropping of rubicund ideas on cohabitation, bride price,
discourage divorce and embolden the institution of marriage. He further
lamented that the word divorce should be deleted from the original draft, stop
demonizing on critical views and lobby for a common ground on property sharing.
He explained that women can be guaranteed their rights and also protect
children from abusive marriages without necessarily vulgarizing the institution
of marriage.

Conclusion

The
marriage and divorce Bill is one of the most debated proposed laws in Uganda
having languished in Parliament for over ten years. Although the Bill was a
product of legislators and activists, there is still a lot to be done to ensure
that the Bill complies with Uganda’s international laws human rights
obligations in the face of stiff resistance from cultural and religious
leaders.

 

 

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