By: Hasfa Namulindwa
Divorce is, essentially, the legal dissolution of a marriage by a court. There are myriad reasons why people divorce (not the subject of this article). There are also innumerable misconceptions about division of assets during divorce. These misconceptions stem from the law, the Bible, and marriage vows, to name but a few.
Under the 1995 Constitution of the Republic of Uganda (as amended), a person of the age of 18 years and above has a right to marry and found a family and the pair are entitled to equal rights in marriage, during marriage, and at its dissolution.
Thus many couples automatically assume that entitlement to equal rights during marriage and dissolution means having an equal share in the property owned by the couple regardless of who acquired the same.
In the book of Genesis 2:24 it states “That is why a man leaves his father and mother and is united with his wife, and they become one.” The belief is that “since they have become one, whatever a man/woman owns becomes joint property and is construed as “theirs/ours”.
The marriage vows
Most marriage vows are to the effect that the couple undertake to live together as husband and wife, in shared companionship in riches or poverty. Hence couples tend to think that it’s a free for all; what’s mine is yours and vice versa.
Because of these misconceptions, some married people muse to themselves ‘Since I am entitled to 50% of the assets, when I’m tired, I can kick him/her out at any time.’ Others live in fear of losing their property to their spouses. They will thus not petition for divorce but rather live in separate bedrooms for years after shared companionship has ceased. There are many homes where the man/woman spends the night in the garage but they will not file for divorce because they fear to lose the property they have worked for their entire life.
So the question is “Can I divorce my wife/husband and retain my property?
I’m glad you asked. Yes, you can. It is not true that your spouse is entitled to 50% of the property. The Supreme Court in the case of Julius Rwabinumi vs Hope Bahimbisomwe (civil appeal No. 10 of 2009) set the guidelines for sharing of property by a divorcing couple.
The basis of the Court’s decision was Article 26 of the 1995 Constitution which recognizes everyone’s right to own property either individually or in association with others.
The property can be categorized into the following.
i). Property acquired before marriage. This shall be held solely by the spouse who acquired it.
ii). Matrimonial property. That is property which the couples refer to as their matrimonial home, where they live and stay, bring up children and quite often earn a living by working on the land on which the home is. This shall be share equally between the couple (50%)
I know you are now thinking “I built my house before marrying her and she did not contribute a thing”.
We should note that the wife’s non-monetary contribution to the matrimonial property has been considered by the courts of law to include such activities like preparation of food, purchase of children’s clothing, getting children ready for school and generally enhancing the welfare of the family. These activities amount to a substantial indirect contribution to the family income and assets which entitles her to an equal share in the couple’s matrimonial property.
iii). Property acquired during marriage solely by one of the spouses shall be held by the spouse who acquired it.
iv). Property acquired during marriage by both spouses or where one of them made a contribution shall be shared according to each spouse’s contribution.
However, the above notwithstanding, the couple is at liberty to execute a legal instrument and to transfer into joint or sole ownership land and/or property he or she held prior to the marriage in favour of his or her spouse, either at the time of contracting the marriage or any time after the marriage has been celebrated.
How about couples who are not legally married?
This scenario was addressed in High Court Civil Suit No. 295/2015. Haji Musa Kigongo vs Olive Kigongo. Where the Judge held that the woman (Olive) had acquired an interest in the house where she had lived for 26 years. Although, there was no evidence of marriage, the Court took into consideration the fact that for a period of 26 years, the man had never objected to her stay in the house, making her believe that it was her home. He was therefore estopped from denying that she had an interest in the said home. Further that the woman (Olive) had referred to herself as Mrs. Kigingo without objection from Mr. Kigongo. She had indirectly contributed to the house including giving birth to two children. (Please note that this judgment is the subject of an appeal).
The question remains; what can one do to protect their property acquired during their marriage life? Kindly contact one of our resident Family Law experts, Hasfa Namulindwa, for details.