Resurrection Of the Perennial Debate About the Rights of Spouses in Matrimonial Property Upon the Breakdown of The Marriage

On 15th November, 2022, the three justices of the Court of Appeal of Uganda at Kampala in Ambayo Joseph Waigo V Aserua Jackline (Civil Appeal No.0100 of 2015) held that the spouses’ share in matrimonial property is not an automatic half-share but instead dependent on his/her contribution to it.
It’s on this basis that I took the initiative to discuss what you might need to know about the division of matrimonial property at the time of marital dissolution. If a couple divorces or obtains a legal separation and the former spouses can't decide how to divide their marital property, court will decide for them. The court divides all property owned by spouses into two categories according to its state law: matrimonial property owned between spouses, and separate property of each spouse.
 

 Matrimonial property?

What amounts to a “matrimonial property” is understood differently by different people and it depends on circumstances of each case. In Uganda, there is no clear (legal) definition of matrimonial property either by statutory law or case law. However, courts have provided a starting point for determination of what constitutes matrimonial property. In the case of Muwanga v Kintu, Bbosa J noted that matrimonial property is that “property which the parties chose to call home and which they jointly contribute to.”
 

 What qualifies property as matrimonial property?

Matrimonial Property comprises all property acquired by either spouse, or both of them, between the date of marriage and the date of separation. It doesn’t matter whose name the property is in. it can include (but is not limited to): Your family home (former matrimonial home) Furniture, Cars or other vehicles, Pensions, Savings and investments. Additionally, furnishings for a family home, acquired before marriage, also form part of the matrimonial property.

 What is NOT Matrimonial property?

Not all property owned by the spouses is matrimonial property, for example; Separate property: this is property spouses acquired before the marriage or property acquired by bequest, devise, descent, or gift during the marriage provided they remain in the same form throughout the marriage. It might also include property that spouses agree to exclude from marital property by signing a prenuptial or a postnuptial agreement.
 

 How about cohabiting couples?

Cohabitation is not recognised as a form of marriage in Uganda regardless of the duration of the time the two have lived together. Courts have held that cohabitees cannot obtain a remedy under the present matrimonial property laws unless they can prove joint ownership of the disputed property as joint tenant or tenants in common or contribution to the acquisition of such property and in that regard the law treats them as a partnership as illustrated by Godfrey Namundi Judge in Musa Kigongo V Olive Kigongo HHCS No.295 of 2015. In Baryamureba James V Kabanyoro Abwooli and 6ors (Civil Suit No. 20/2013) where the couples had been cohabiting for more than 35 years, Justice Henry Peter Adonyo while interpreting section 38A of the Land Act, gave a broader interpretation to the term “spouse” to be for not only those married under the laws of Uganda but to include also people that have been cohabiting for a longer period to avoid absurdities. Court considered such relationships as constructive marriages.
 

 How is matrimonial property apportioned?

Decisions regarding the property rights of married persons are governed by Article 31(1)b of the Constitution of the Republic of Uganda, 1995 which provides for equal rights of spouses in the following terms “A man and a woman are entitled to marry only if they are each of the age of eighteen years and above and are entitled at that age…. to equal rights at and in marriage, during marriage, and its dissolution”. The constitution also sets out the other general principles which court should always be mindful about when dealing with property rights of spouses namely; equality and non-discrimination (Article 21); the right to private property (Article 26); rights of a family (Article 31); affirmative action in favour of groups marginalized on basis of gender, age, disability, or any other reason created by history, tradition, custom (Article 32); rights of women (Article 33). The other important legal aspect in relation to matrimonial property is enshrined in Section 38 of the Land Act as amended, which guarantees the security of occupancy of every spouse on family land. Under Section 39, the Act prohibits the sell, exchange, mortgage, lease or transfer of family land without the consent of his or her spouse. In Alice Okiror & Anor v. Global Capital Save 2004 & Anor, it was held that in the absence of written spousal consent to mortgaging the property in issue for the amount stated therein, the mortgage created over it was void.

Equitable Distribution: Court will put all matrimonial property together then fairly allocate that property between spouses. The question of whether property should be divided equally on divorce depends on the individual circumstances of the case as discussed in Julius Rwabinumi V Hope Bahimbisomwe Civil Appeal No.30 of 2007, Twinomujuni JA held that at the time the groom and bride become husband and wife, all the property they own become joint matrimonial property and on separation they should be equally divided and shared to the extent possible and practicable. However, on appeal to the Supreme Court, Kisakye JSC observed that, Article 31(1) (b) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or the husband at divorce, however it does not require that, all property either individually or jointly acquired before or during the subsistence of a marriage should in all cases, be shared equally upon divorce. In Gissing v. Gissing, the House of Lords held that it is not in every case that the parties hold in equal shares. In Mayambala v Mayambala, High Court Divorce Cause No. 3 of 1998, the wife’s interest in the matrimonial home was established at a 70% share. The court of appeal of Kenya at Nairobi in PNN V ZWN (Civil Appeal No.128 of 2014) while considering Article 45(3) of the constitution of Kenya which is Pari Materia with Article 31(1)b) of the constitution of Uganda held that the equality of spouses guaranteed by the Constitution is not synonymous with equal propriety entitlement and does not give automatic half share in matrimonial property to a spouse whether or not he or she earns it. That property entitlement of a spouse is dependent on his/her contribution towards the matrimonial property. This has recently been applied by the court of Appeal in Uganda in Ambayo Joseph Waigo V Aserua Jackline (Civil Appeal No.0100 of 2015), where Muzamiru mutangula Kibeedi, JA held that the respondent was entitled to 20% share in the suit property (their former family home)

Where a spouse makes a substantial contribution to the property, it will be considered matrimonial property. The contribution may be direct and monetary or indirect and non-monetary.

 How is non-monetary contribution valued/quantified?

Though part of what is termed as “unpaid care and domestic work,” at national and family level non-monetary contribution of spouses is of great economic significance and valuable. It includes; caring for children, elderly and the sick members of the family, household chores like laundry, grocery shopping, cooking, cleaning, construction and repairs, cultivating food for the family subsistence, name it. Any matrimonial property (owned jointly or in the sole name of one of the parties) will be valued or appraised for the purpose of Financial Remedy Proceedings. There are a number of factors which need to be taken into account when considering the overall value of such contribution. Kibeedi, JA in Ambayo V Aserua (supra) considered the fact that monetary value principles used in determination of the unit value or cost of labour or services in the world of employment (remuneration of labour) cannot be ignored completely when ascertaining the value of non-monetary contributions in matrimonial disputes. However, court should not loose sight of the fact that dispute involves rights of spouses and as such warrants less strictness than that exercised when considering dealings between “strangers.” He further considered the aspect of non-monetary compensation for non-monetary contribution, basing on the economic concept of opportunity cost and the transformative value of some services such as education, which changes the individual’s world outlook and also increases their life opportunities; and as such it was held that investing in the respondents education in this case, was in sense paying her and thereby reduced on the quantum of her claim for the unpaid care work.
 

 Conclusion:

Matrimonial property law cannot easily be detached from the law relating to women’s property rights. Indeed, there is no better argument to support this factual assertion than that of Twinomujuni JA in Rwabinumi V Bahimbisomwe when he stated that, ‘A woman was regarded as a property of the man and totally incapable of holding property of her own independently of the man. As a result, the earlier court decisions held that women in a matrimonial relationship could not acquire and hold real property.’ However, there was a radical change in the law relating to matrimonial property in Uganda after the promulgation of the 1995 Constitution which introduced the equality in marriage principle as encapsulated in Article 31 (1). For example, several provisions of the Divorce Act which were not in conformity with the Constitution were declared null and void in the case of Uganda Association of Women Lawyers & Others v Attorney General Constitutional Petition No.2 of 2003. It can therefore be deduced that the law relating to matrimonial property has shifted from male or patriarchal ownership of matrimonial property to a joint ownership of the same. The development of the law regarding matrimonial property clearly reflects the development of the status of the wife from being a subservient member of the family to becoming its co-equal head’