The Marriage and Divorce Bill debate

By Alan Ssempebwa

Men should be aware that while they accumulate property, women play an important role through their domestic work – Betty Amongi, Apac District Woman MP

Are current marriage laws out-dated?

There are realities that have changed since we last looked at this legislation so it needs reforming. The Bill before parliament consolidates existing laws, putting them into one piece of legislation, so that all the scattered forms of marriage are in one place. Therefore we would be updating and reforming old legislation.

Do you think cohabitation should be considered a form of marriage after two years?

There is a misconception that the Bill recognises cohabitation as marriage, this isn’t true. The Bill seeks to give rights to cohabiting partners at dissolution of their cohabitation to have a right to a fair hearing before a court of law. So they too could seek a just and fair way of distributing their property.

Another issue is that cohabitation is not legally recognised or defined so we cannot go ahead and give them rights. We have come to a decision that we shall drop the provision and bring a proposal dealing comprehensively with that matter later. It is unfair to make legislation based on something undefined.

Should property accumulated during the marriage be split 50/50 after the divorce?

There is a misconception that the Bill stipulates a 50-50 distribution of property. The Bill distinguishes separate property. This is property acquired before marriage and during marriage that may be owned individually by a spouse. There is family land and ancestral property, which cannot be subjected to division at dissolution of marriage.

Then it defines matrimonial property, which is the subject of division. Clause 115 defines matrimonial property as: the matrimonial home, household property in it, any other property either immovable or movable acquired jointly during the subsistence of the marriage and separate property that the spouses have agreed to share at dissolution of marriage.

For those concerned about children, the Children’s Act deals with how property is dealt with in respect to children.

Should legislation be more sensitive to traditional customs such as bride prices and widow inheritance?

Yes, but in tandem with the constitution. I want to assure traditionalists that the clause we passed on bride price retained the right of each ethnic community to conduct marriages according to their own traditions and customs. The return of bride price is the only thing we have banned.

On the issue of consent, people have opposed it because it excludes parents. But we define consent as “between two parties”. People should also be cognisant of the constitutional provision that says any custom that undermines the status of women is prohibited. We are trying to address the idea that paying bride price is essentially buying a woman. We have catered for traditional marriages. We even protected communities that own land customarily; it won’t be subjected to distribution.

We are very conscious that we must protect the cultural mechanism within which communities operate.

What effect will this legislation have on divorce? (Will it lead to an increase?)

The Bill as it stands on divorce uses existing law. It doesn’t compel anybody to go to court; divorce is a last resort. The Bill has very stringent conditions for divorce. It can only be permitted when marriage has irretrievably broken down and is proven in a court of law. That gives an opportunity for all avenues to be exhausted before divorce. Even after those mechanisms have failed, you are allowed two years of separation to gauge whether you can reconcile before you seek divorce. This was not in the previous law.

There’s no divorce within two years of marriage except in exceptional circumstances, these include: non-consummation of marriage or impotence. This Bill is more stringent and makes it harder to divorce.

Do you think the Bill encourages gender equality or is it at the expense of men?

I believe it favours of men. A religious person told me that in the church you swear, “all that I have is yours” but the Bill gives leeway not to share your property with your spouse. This protects men, as they are the most likely to possess property. But men should be aware that while they accumulate property, women play an important role through their domestic work.

The Bill even gives a provision for prenuptials called ‘property agreements’. So one can have an agreement for how property would be shared. Unusually it is the men in parliament that have opposed this preferring not to put legal agreements on their relationships. Overall nobody should feel discriminated.

What is the likelihood of a consensus on the Bill?

We have come very close to consensus. One of the few issues was bride price, which has now been resolved. We have passed 23 clauses of the Bill. Having dropped cohabitation, there is little resistance to the bill. Conjugal rights are perhaps the remaining contentious issues. The issues allows a partner to deny sex if the individual has reasonable fear that engaging in sex will cause psychological injury or because of poor health.

A one size fits all solution to marriage and divorce is not the best way to handle such sensitive matters – Rafael Magyezi, Igara West MP

Are current marriage laws out-dated?

It’s quite possible that they are. It is important to have an up-to-date framework of legislations. However, this is no excuse to introduce a Bill that appears to support divorce instead of marriage. The Bill is doing a good job in combining existing laws and consolidating them into one. We are modernising the legislation but there are areas of it that I disagree with and believe need to be handled better. For example the way that it relates to faith groups and traditional customs.

Do you think cohabitation should be considered a form of marriage after two years?

The reality is that many people are cohabiting so it is right to have a debate on the issue. But just because something exists does not give us the right to legalise it. This Bill is based mainly on Christian marriage, though other forms are recognised too, and cohabitation is not recognised in the Bible or any other religious text. Even traditional marriages have to be formalised by visiting the parents for a blessing. You cannot just rush into a relationship and expect the perks of a married couple.

This has been a highly contentious issue. It is incompatible with my Christian faith and also with many traditional customs here. Some of the articles in the Bill claim that cohabitation is almost equal to marriage. This is impossible. Hence it is right that we have had that part of the bill removed.

Should property accumulated during the marriage be split 50/50 after the divorce?

Firstly, I don’t believe that couples should be focussing on accumulating wealth. That is not what marriage is about. Unfortunately for this Bill, though well intentioned, it encourages some immoral practices. It is possible for an individual to get married, divorce after two or three years, marry again, divorce again, and continue on this spiral all the while accumulating property. It would be difficult to indicate whether this was fraudulent or not.

A one size fits all solution to divorce and property division is not the best way to handle such sensitive matters. So I commend the Bill for clarifying matrimonial property from other types of property that should no be tampered with.

Should legislation be more sensitive to traditional customs such as bride prices and widow inheritance?

Yes. The language and the logic behind this Bill do not express the complexity of tradition or understand the customs in the different communities of Uganda. Bride price is the wrong word for the practice. When one offers a ‘bride price’ it is not to buy the bride as the name suggests. The Baganda offer O’mutwalo, the Banyankole offer Enjugano. There purpose is not to buy the bride per se. ‘Bride price’ is used for lack of appropriate language. The actual emphasis of these customs is security and bonding. You offer gifts to the family and the family shares out the offering. You acknowledge that getting those gifts back would be near impossible and so you are bound to your wife and have no intention of trying to recoup the gifts.

Widow inheritance is a similarly difficult issue to understand without considering the purpose of the practice. It is supposed to offer security to the woman and the children. We must understand these customs and should not simply apply a one size fits all solution.

What effect will this legislation have on divorce? (Will it lead to an increase?)

In the Bill’s current form there seems to be an emphasis on divorce. This is even hinted at in the title. This disposition towards divorce may send the wrong signal to the public. There is also the perception that it makes it too easy to get divorced. Not everything needs to be legislated like this.

Do you think the Bill encourages gender equality or is it at the expense of men?

To be fair there is an emphasis on gender equality and I am all for equality. In Uganda the husband is the main breadwinner, but the work of women at home contributes significantly to the harmony in a household. It allows the man to go out and work, so they play equal roles.  If the work of a wife is seen in economic terms, the role turns out to be very important. So the Bill addresses these kinds of imbalances. I want to dispel the myth than women are getting more than men from this bill.

What is the likelihood of a consensus on the Bill?

I would like to see more deliberation and debating on the bill. We want to go back to the caucuses and talk to our constituents and get the views of the people we represent. The Bill has already almost taken 50 years to be implemented, so waiting a little bit longer will not hurt. It will impact current and future generations so we cannot afford to be hasty.