PROPERTY: Judge advises Ugandan cohabiting couples to sign contracts

Kampala, Uganda | THE INDEPENDENT |  The head of the Civil Division of the High Court Judge Musa Ssekaana has advised unmarried couples staying together to sign agreements that will streamline the ownership of property so that when the relationship breaks down, they have some legal cover.

Ssekaana was ruling in a case where Bigala Frediman sued Lornah Namuwenge with whom he was cohabiting, and is seeking to recover over 43 million Shillings he deposited in her account with a view to starting a joint business.

Ssekaana said relationships that are not recognized under the law, the rights of those concerned are hard to enforce when they break down. “Unmarried couples are advised to draft agreements expressing their understanding of or expectations about exchanges of economic value in their relationship. If a couple has agreed on how to govern the property aspects of their relationship and how to dispose of the property when the relationship ends, the law ought to help carry out that agreement, unless doing so would be contrary to any law of the land,” Ssekaana advised in his opinion.

He added that most couples do not consider the economics of their relationship paramount when their relationship begins because they fear that even mentioning such mundane matters would debase other more important non-economic aspects of their relationship. “While a court should honor express oral agreements too, their existence and contents will usually be difficult to prove in court. A court might, of course, infer an agreement, but inference can be an unreliable mechanism of ordering the economic relations of unmarried couples,” Ssekaana said.

In the case, Bigala alleged that in 2014, he and Namuwenge got into a relationship with an intention of getting married and had one child in 2017. He contended that with the view of opening a business, he agreed with Namuwenge orally to begin saving through her account for business purposes and that the money would only be withdrawn when it accumulated to 100 million Shillings.  However, Bigala alleged that he discovered that Namuwenge was having an affair with another man and that they were in the process of getting married, and that Namuwenge had also withdrawn part of the money for her personal use.

In court filings, Namuwenge admitted that indeed Bigala had been depositing money in her account not to start a business but rather as profits he was making from a takeaway business she had started for him. She also said she was withdrawing the money in order to look after herself and her child because she had lost her job at Finance Trust Bank.

In his ruling, Ssekaana said Bigala had failed to prove that the money deposited in Namuwenge’s account was for intended future business purposes. “He cannot claim that the defendant unjustly enriched herself when she withdrew and used the money for herself and their child’s upkeep. This court should not lend a hand to the plaintiff who is trying to take revenge because of a failed relationship to recover money given during a relationship without clear consideration.

One of the most intriguing of the questions in this matter is whether the plaintiff as a co-habitant has a right, upon dissolution of the relationship, to remuneration for expenses or contributions made during the relationship,” Ssekaana’s ruling reads in part.

It adds that unmarried or cohabitants have no right to recover money made or contributed in such a relationship unless it is jointly owned by registration or joint bank account or such other ownership which infers clear joint ownership. “The status of ‘concubinage’ or ‘meretricious cohabitation’ afforded neither party any right to recover for services rendered to the other or contributions made for upkeep, unless the party seeking recovery was induced to provide services under a mistaken belief that the couple was validly married or by duress.

It is quite unfathomable that the plaintiff orally agreed to a proposition worth 100 million Shillings without any formal agreement, such a ‘bedroom agreement’ should not be enforced in courts of law. In absence of proof of a contract, there cannot be a breach of contract.”

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