THE EVOLUTION OF THE LAW RELATING TO MATRIMONIAL PROPERTY IN UGANDA.

Several conflicts arise between spouses. The bulk of problems are experienced by women,
more so on divorce or death among others of the spouse and pmiicularly on the issue
concerning matrimonial property. Also disputes may arise concerning matrimonial property
between spouses, co-wives, between wives and husbands relatives upon the death of a
husband or wife Evidence of disputes over matrimonial property shows that disputes are more
common in all tribes especially among the Buganda among other tribes especially in relation to
land issues. It appears that because of the stigma attached to those who report conflicts,
majority of property related disputes are resolved by the pmiies involved. In most eases
disputes are not referred to third parties for mediation because of fear of publicity. Most
people prefer to deal with the disputes behind closed doors. However there is substantial
evidence that in most cases such matters are never resolved but rather shelved away never to
be revisited. Women are reluctant to disclose property related wrangles for as long as they are
still in the marriage, women often fear seeking intervention because of the time and expense
involved in suing their husbands yet at the end of it all the results may not be their favour.
Similarly there is fear among men emanating from the feeling that they will be stigmatized or
ridiculed if they reported their wives to an external authority. Men and women conceded that it
is mainly the women who experience the above problems because they are the disadvantaged.
Although in a few cases women are the aggressors, in the majority of cases, women are usually
the aggrieved parties.

Definitions

Property

Property is anything that you can own exclusively with the protection of the law 1• Therefore,
ownership need not of course be by an individual only, but it can be by any of several kinds of
groups who are right to own property the law recognizes. Property is the generic term for all
that a person has dominion over. It belongs to a person exclusively of others and can be the
subject of bargain and sale. It is indicative and descriptive of every possible interest which a
party can have. Property can be divided into real and personal.It includes gifts by will, chooses
in action shares, shares in a company, good will, trademarks, rights under contract, chattels,
goods, money valuable securities and others.

Black's law dictionary2 gives the definition of propetty, that propetty is the right posses, use
and enjoy a determinate thing.

1
You and the law reader digest by William and Salter.

2
Eight edition Brvan A, Garner
Section 1 (j) of the Sale of Goods Act3 defines property and it states that property means the
general propetty in goods and not merely a special property. In Re Keene4, It was held that the
notion "Propetty" includes intangible as well as tangible assets.

The law relating to matrimonial property is hinged on the concept of marriage. This law only
and strictly applies to married and/or formerly married persons. In Case v Ruguru, court held
that since the defendant was not legally married to the plaintiff, she could not base a claim of
occupancy on ground that she was the plaintiff’s wife.

Matrimonial Property: Bbosa J in Muwanga v Myllious Kintu5 defined matrimonial property as

that property a married couple chooses to call home and such other property that a married
couple contributes to either directly or indirectly and maybe jointly registered in their names or
otherwise if registered in one’s names, it can be under the basis of resultant trust.

In Julius Rwabinumi v Hope Bahimbisomwe6, the supreme court made emphasis in regards to
Muwanga v Kintu7 that different people understand the concept of matrimonial property
differently and therefore there is that property held in trust for the clan property acquired
before the marriage, property acquired during the subsistence of the marriage but personal
property, and that property the couple chose to call home, all this should be treated differently.
Because marriage doesn’t take away ones right to own personal property as guaranteed by
Article 26(1)8

Marriage: Lord Pezance in Hyde v Hyde and Woodmansee 9 stated that “ I conceive that
marriage, as understood in Christendom, may for this purpose be defined as the voluntary
union for life of one manand woman , to the exclusion of all others” this is widely acceptable as
the definition of marriage however regards must be put to Islamic marriages 10 and Traditional
marriages11 that accept more than one wife hence embracing polygamous marriages.

3
Cap 82

4
(1922) 2ch 475.

5
High Court Divorce Appeal No. 135 of 1997

6
Civil Appeal No 10 of 200

7
High Court Divorce Appeal No. 135 of 1997

8
The 1995 Constitution of The Republic of Uganda, as amend

9
{L.R.} 1P.& .130

10
The Marriage and Divorce of Mohammedans Act, Cap 25

11
Customary Marriage (Registration) Act, Cap 24
Marriage is the legal union of a couple as husband and wife (Black’s Law Dictionary pg. 3084).
Under Article 31(1)12 a person of the age of 18 years and above has a right to marry. There are
various forms of marriages in Uganda. The forms of marriage recognized in Uganda include
marriages conducted in accordance with the Marriage Act Cap. 251, Customary Marriage
(Registration) Act Cap. 248, the Marriage & Divorce of Mohammedans Act, Cap. 252, the Hindu
Marriage & Divorce Act, Cap. 250 and marriages contracted under or in accordance with any
customary law recognized by the law of Uganda. A person can contract a marriage in any of the
above forms.

Matrimonial property in Uganda has not yet been clearly defined either by statutory law or case
law. Different authors have written about the topic and have made such attempts but have
been criticized for not bringing out a wider coverage of the issue particularly failing to analyze
the issue of gender imbalance and the methods to be employed to make quantification of the
nonmonetary contribution to reach a final percentage in the share of matrimonial property

According to Bromley Lowe13 tries to address the aspect of quantification of shares but he
inclines it to aspects of cases of only trusts and estoppel, he maintains quantification under
resulting trust where there was title but it was registered in the husband’s name only, in cases
of constructive trusts which only depends on what the couple said to each other which in most
cases is hard to prove, he furthers his argument by analyzing quantification in cases of
proprietary estoppel or by an agreement to vary the beneficial interest, he further looks at
quantification in cases of improvements on a family home, the author is credited for identifying
and analyzing the different tests and approaches to undertake in quantification of shares in a
the marital property under given circumstances but he fails to analyze and solution the
circumstance where all the circumstances he provided for are absent to which this study
intends to look into

However courts have provided a starting point for determination of what constitutes
matrimonial property. In the case of Muwanga v Kintu (1997), Bbosa J noted that matrimonial
property’ to which each spouse should be entitled is that property which the parties chose to
call home and which they jointly contribute to.”

The law relating to matrimonial property in Uganda has come a long way. To best understand
the evolution of matrimonial property law, it is pertinent to understand the social perception of
women’s property rights in Uganda at the different times. Matrimonial property law cannot
easily be detached from the law relating to women’s property rights. Indeed there is no better
12
ibid

13
N V Lowe and G Douglas, Bromley’s Family Law, 10th Edition, Oxford University Press, 2007 pp 164-170
argument to support this factual assertion than that of Twinomujuni JA in Julius Rwabinumi V
Hope Bahimbisomwe 14 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.’

In the pre-colonial era, marriage and matrimonial property were basically governed by
customary law. Customary law depended on the customs of the different societies in Uganda.
During this time women could not own property. The property was basically owned by the man.
A woman could hardly claim a thing on divorce. Women were seen as a source of labour and
hence divorce was seen as loss of labour15, the wife was hence not entitled to anything if she
left the husband’s home since they were in themselves seen as property for men 16. At this
point, there was nothing as to quantification of how much each party was entitled to at the
dissolution of a marriage or even at the death of a husband. Okumu Wengi argues that this is
because a woman was considered as a source of labour and divorce meant loss of source of
labour (Weeding the Millet Field).

During the colonial era, courts interpreted customary law in terms favourable to women
(Khadhadiagala, 2002 pg.2). The courts protected the rights of women in relation to
matrimonial property and ownership of land. The protection of these rights was embedded in
two legal principles; the house property complex and the principle of gifting. The house
property complex organized assets around autonomous female-headed houses. Men retained a
few parcels of land but distributed the bulk of their assets to women for food production. This
was premised on the idea of social order through food production. Under the idealized house-
property complex, land passed from mother to son. Should a woman die or divorce before their
maturity, the husband holds the land in trust for them (Khadhadiagala, 2002, pg. 10).

On the other hand the principle of gifting was simply premised on the idea that ‘once a man
had allocated property to a wife’s ‘house’, the courts made it difficult for him to take it back’
(Khadhadiagala, 2002 pg.2). The colonial courts perceived female authority to be a guarantor of
social order from the 1930s to the late 1960s (Khadhadiagala, 2002 pg. 1). Matrimonial
property law at this time recognized women’s rights in marriage and sought to protect them.

14
Civil Appeal no.30 of 2007

15
Jennifer OkumuWenji Weeding the Millet Field; Women’s Grassroots Justice in Uganda Law Africa Publishing Ltd,

16
2011 Twinomujuni JA in Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No.30 of 2007) illustrated this
where he stated that “A woman was regarded as 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 property.”
In the period between 1960s -1995 the law in relation to matrimonial property took a different
position. Khadhadiagala argues that it was not until the late 1960s that courts favoured a more
patriarchal vision of family and by the 1990s, entrenched in judicial doctrine was a legal
presumption that property belongs to the male head of household (2002 pg. 1). This
postulation reiterates the dictum in Twinomujuni’s judgment in Rwabinumi’s case supra when
he observed that the law has a ‘long history of treating the woman as an inferior partner in
marriage’.

Matrimonial property law was governed by the Divorce Act 1904 which had its origin in the
Matrimonial Causes Act of 1857 of England which Act had its roots in the common law of
England. At common law the wife almost owned nothing. The wife’s freehold property was
controlled by the husband while her leasehold property belonged absolutely to her husband. If
the husband died before the wife, she resumed the right to all her freeholds but when she
predeceased him, her estates descended to her heir subject to the husband’s right, as ‘tenant
by the courtesy of England’ to an estate for his life in all her freeholds in possession’ 17

During marriage, the wife took no interest in her husband’s real property. If she survived him,
she became entitled by virtue of her ‘dower’ to an estate for life in a third in all her husband’s
freeholds of which he had been seized in possession at any time during marriage, provided that
she could have borne a child capable of inheriting, whether such a child was ever born or not 18.

All personalty in possession belonging to the wife at the time of marriage, or acquired by her
during the marriage, vested absolutely in the husband who had the power to dispose of
them19 . In Lailai Ghinamouze V The Queen (1956), court held that all chattels in the
matrimonial home are naturally presumed to be property of the husband. Even if the husband
died intestate during the wife’s life, the property did not revert to her.

There was a radical change in the law relating to matrimonial property in Uganda after the
promulgation of the 1995 Constitution. This era is referred to as the post-1995 era. The
Constitution introduced a new principles of law in relation to matrimonial property among
which the equality in marriage principle is inclusive. After coming into force of the Constitution,
customary rules and sentiments about property rights that were repugnant to natural justice
were wiped out (for instance the denial of women from holding property which barred them
from getting a share in the marital property), and others were modified to meet acceptance in
the existing regime20.

17
(Lowe & Douglas, 2007 Pg. 127-128).

18
ibid

19
ibid
Chapter 4 of the Constitution embodies rights which must be observed, respected and upheld
by all persons and all bodies and these rights are inherent and not granted by the state as
established under Article 20 of the Constitution.

A more acceptable approach was established after the coming into force of the 1995
Constitution of the Republic of Uganda, as amended where protective provisions towards
protection of women rights were inserted taking effect that there needs to be equality for all as
enshrined under Article 21(1)21.

Equality was extended to property rights where Article 26(1)22 empowers every individual to be
capable of owning property of themselves be it a man or woman, and a more strict approach in
relation to matrimonial property rights in and at the dissolution of a marriage under Article
31(1)23 that emphasizes that men and women should have equal rights during and at the
dissolution of the marriage. This implies that both parties are entitled to a share in marital
property at the dissolution of the marriage irrespective of the gender.

Article 33(3) states that the state shall protect women and their rights, taking into account their
unique status and natural material functions in society, Article 33 (4) still puts emphasis that
women shall have the right to equal treatment with men and that right shall include equal
opportunities in political, economic and social activities.

Pursuant to Article 33 (6), laws, cultures, customs or traditions which are against the dignity,
welfare or interest of women or which undermine their status, are prohibited by the
Constitution.

The Constitution from the above provisions therefore makes a wide coverage as regards
equality of men and women at the dissolution of the marriage, it as well prohibits any laws,
cultures and customs that may undermine the interest of women since women are the most
vulnerable when it comes to matrimonial property division.

This means that this equality should extend to property rights, in this circumstance matrimonial
property. Therefore, the division of matrimonial property according to the constitution should
be given an equal division between the parties at the dissolution of the marriage. The
20
Section 15 of the Judicature Act emphasizes that the High Court may observe customary law for as long as it not
repugnant to natural justice and the written law

21
It stipulates that all persons are equal before and under the law in all spheres of political, economic, social and
cultural life and in every other respect and shall enjoy equal protection of the law

22
Stipulates that every person has a right to own property either individually or in association with others

23
In verbatim 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
Constitution has therefore established the safeguards towards the equal distribution of marital
property between the spouses at the dissolution of the marriage

As a result, 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 General24.

The question of equal rights in marriage has been a subject of debate. In Julius Rwabinumi V
Hope Bahimbisomwe25 , Twinomujuni JA held that at the time the bridegroom 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,’ The learned Justice of
Appeal not only wrongly articulated the law as to what constitutes matrimonial property, but
also how and when individually held property of person acquired before or during marriage
becomes matrimonial property.’ The court held that a spouse can own individual property as
per Article 26 or jointly with his/her spouse. Further it was held that,’ Article 31(1) (b) of the
Uganda Constitution (1995) guarantees equality in treatment of either the wife or the husband
at divorce, it does not, in my opinion, 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.’ It was concluded that the question whether individual property became joint
matrimonial property and whether it should be divided equally on divorce depends on the facts
of each individual case.

What Amounts To Matrimonial property

Common law precedents have overtime established an approach to take in quantifying the
marital property and this has categorically been made in two ways, that is through considering
the direct and indirect contribution of parties.

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. In Kagga v Kagga26 Mwangusya J observed that our courts established a principle
which recognizes each spouse’s contribution to the acquisition of the property whether direct
through financial contributions or indirect through domestic services. The supreme court in
Julius Rwabinumi v Hope Bahimbisomwe27 emphasized the tangible financial contribution,
24
Constitutional Petition No.2 of 2003.

25
Civil Appeal No.30 of 2007

26
High Court Divorce Cause No.11/200

27
S.C.C.A No.10 of 2009
direct or indirect which is clearly provable towards the acquisition of the property in dispute as
the guiding principle in determining the wife's share. For the wife to be entitled to a share of
the property registered in the name of the husband, she has to prove financial or monetary
contribution towards the acquisition of the property.

In Muwanga v. Kintu28, (Unreported), Bbosa, J., adopted a wider view of non-monetary

indirect contributions by following the approach of the Court of Appeal of Kenya in Kivuitu v.
Kivuitu29, In that case, Omolo JA found that the wife indirectly contributed towards payments
for household expenses, preparation of food, purchase of children’s clothing, organizing
children for school and generally enhanced the welfare of the family and that this amounted to
a substantial indirect contribution to the property.

The decision in Ayiko Mawa Solomon v Lekuru Annet Ayiko (Divorce Cause No. 0001 of 2015)

These two theories were critically analysed and applied in Ayiko Mawa Solomon v Lekuru
Ayiko30, briefly, the petitioner and respondent engaged in a civil marriage, due to adulterous
claims by both parties, they sought the dissolution of the marriage. The respondent wanted a
share of the property jointly acquired during the subsistence of the marriage, and that that
property be divided equally between them. The petitioner wasn't willing to let her have any
share of the property contending that it's his personal property acquired before the marriage
and that the rest of it belongs to his brother or the Non-Governmental Organisation that
employs him.

The fourth issue was whether the parties are entitled to any of the reliefs sought upon the such
dissolution.

The court relied on the case of Charman v Charman (No 4)31 which defined matrimonial
property as "property of the parties generated during the marriage otherwise than by external
donation", the court as well relied on Sections 9 and 10 of the Family Law (Scotland) Act 1985
which defines it as "the matrimonial home plus property acquired during the marriage
otherwise than by gift or inheritance"

However, not every property that is acquired by either spouse during the subsistence of the
marriage constitutes matrimonial property. In absence of statutory provision, there can be no

28
High Court Divorce Appeal No. 135 of 1997

29
[1990 – 19994] E.A. 270

30
Divorce Cause No. 0001 of 201

31
[2007] EWCA Civ 503
suggestion that the status of marriage per se results in any common ownership or co-ownership
of property.

On that proposition, court relied on the finding of Kisaakye JSC in Julius Rwabinumi v Hope
Bahimbisomwe32 where she stated that "so while I agree that Artiicle 31(1) of the constitution
guarantees equality in treatment of either the wife or husband at divorce, it does not, in my
opinion, 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 my view The
Constitution while recognizing the right to equality of men and women in marriage and its
dissolution, also reserved the constitutional right of individuals, be they married or not to own
property either individually or in association with others under Article 26(1) of the Constitution.
This means that even in the context of marriage, the right to own property individually is
preserved by our Constitution as is the right of an individual to own property in association with
others who may include a spouse, children, siblings or even business partners. If indeed the
framers of our Constitution had wanted to take away the right of married persons to own
separate property in their individual names, they would have explicitly said so.....then the
courts.......” courts in determining whether the property is matrimonial property or not to be a
subject of equal division have to look at the available law on divorce and the constitution as
facts of each case would dictate.

Court in reliance on Pettitt v Pettitt33 stated that the general practice of courts in presuming
common ownership or co-ownership of property is in respect of such property as is registered
in the names of both spouses or property registered in the names of one spouse but in respect
of which there is evidence of the other spouses' contribution to the purchase of the property. In
such cases, the spouses will be considered to be equal owners or in some other proportions.

Lord Upjohn in Pettitt v Pettitt above opined that "but where both spouses contributed to the
acquisition of property, then my own view (of course in the absence of evidence) is that they
intended to be joint beneficial owners, that is so whether the purchase be in the joint names or
in the name of one. This is a result of an application of resulting trust. For the facts constituting
the present case, court placed the present property in four categories, that is the property in
respect of which there was evidence of acquisition before the marriage (this included land at
plot 17 Awudole Crescent purchased on 23rd Sept 1999), that was before the marriage was
entered and this was not categorised as matrimonial property.

The second category was that property whose ownership the petitioner attributed to other
persons which included the residential house at Anyafio West in Arua and a semi-permanent

32
S.C.C.A No.10 of 200

33
[1969] 2 WLR
house in Anyafio East in Arua which the petitioner attributed their ownership to his late
brother, the assorted farm machinery for making chicken feeds, the Tipper Lorry Reg No UAM
135Y, the LG refrigerator and others that he attributed to the Non-Governmental Organisation
"Peace for all International". The burden was on the respondent to refute this claim but she did
not adduce such evidence to convince court otherwise. Court inclined to believe the petitioner
that it is not matrimonial property since all but one of it constituted the matrimonial home and
there was no evidence of joint acquisition.

The third category was that property that evidence of its acquisition was adduced to determine
whether it was acquired before or during the subsistence of the marriage, and since it did not
contain a matrimonial home, it was not proved to be such matrimonial property.

Then the last category was that property that was acquired after 14th February 2009 after the
parties entered the Islamic traditional Nikah ceremony which included several plots of land,
none of which was acquired in the joint names of both parties, all purchases were made in the
sole name of the petitioner, therefore the respondent had to adduce evidence of joint
contribution to the purchase since there was no general presumption that any or all property
acquired during the subsistence of a marriage was to be treated as being jointly owned by the
parties.

The burden according to Kimani v Kimani34 fell on the respondent to prove on a balance of
probabilities that she directly or indirectly contributed towards acquisition of the properties in
respect of which she claimed to be entitled to a share without losing sight of the fact that in
regard to indirect contribution, the same was invariably to be considered in its own special
circumstances. In Echaria v Echaria35, court made a conclusion that where the disputed
property is not registered in the joint names of the spouses but is registered in the name of one
spouse, the beneficial share of each spouse would ultimately depend on their proven respective
proportion of financial contribution, either direct or indirect towards the acquisition of the
property and where the contribution is not ascertainable, but substantial it may be equitable to
apply the maxim "equality is equity".

In Kivuitu v Kivuitu36, the lower court had awarded an uneven share in the family home to
which was registered in both the husband and wife's names but without specifying the share of
each party, the appellate court found that the value of the house be split evenly between the
spouses. It ruled that in addition to making direct financial contributions to the family income,
the wife had made indirect contributions by paying for household expenses, preparing food and
34
(1997) LLR 553

35
[2007] 2 EA 139

36
[1991] K.L.R 248
clothing for the children, organizing their schooling, and generally enhancing the welfare of the
family. One of the judges commented that "The time when an African woman was presumed to
own nothing at all and all she owned belonged to her husband has long gone....."

Omolo Ag J.A (as he then was) in the kivuitu v kivuitu commented that "even if i had been of
the view that the wife had contributed no money at all towards the purchase of the home, I
would have gone on to asses her non-monetary contribution as a wife and put a value upon
that. As I said earlier it would be extremely cruel to the wife and to the other women in her
position that they can only have a share in property acquired during marriage if they can prove
financial contribution.”

In Nderitu v Kariuki37, the Kenyan court stated that "a wife's contribution, and more particularly
a Kenyan African wife, will more often than not take the form of back-up service on the
domestic front rather than a direct financial contribution. It is incumbent, therefore, upon a
trial judge ....to take into account this form of contribution in determining the wife's interest in
the assets under consideration."

In the instant case, the facts established are that the respondent did not make a monetary
contribution but only made a substantial non-monetary contribution to the property in
question to the property in the fourth category by rearing chicken at home, managing their
internet cafe and restaurant, for a considerable period of time, the petitioner depended on the
respondent for the supervision of construction work of what was later to become the
matrimonial home. In as much as she did not furnish specific figures to guide court in
quantifying the indirect financial contribution, she actually contributed directly or indirectly
towards the property in this category and is thus a subject of equitable division. However, the
question of how much of the respondent's contribution was, was of necessity and difficult to
attribute. But this was answered by attributing the maxim of equity is equality.

Judge Stephen Mubiru considering the monetary and non-monetary contribution of the
respondent and the lifestyle she was accustomed to and the maxim equality is equity made
orders that the respondent take the land at Jiako Village as her fair share, the petitioner was to
pay half the confirmed value of the matrimonial home at Jerekede Avenue, Anyafio in Arua and
payment of 20,000,000 as alimony in lump sum.

The reliance on decided cases at some point causes confusion since some cases awarded shares
in unequal sums for instance in Mayambala v Mayambala38, The court reached at a 70% share
due to the wife’s non-monetary contribution in the matrimonial home, Ugandan courts still
apply this precedent in their decisions which opinionly is in serious breach of the provisions of
37
[1995-98] E.A 235

38
High Court Divorce Cause No 13/1998
Articles 21 and 31 (1) of the Constitution since it doesn’t reflect the principles of equality and
courts do not as well show the criteria they followed in this award of unequal shares.

The biggest question is however should marital property be divided equally? The decision in
Gissing v Gissing39 and the recent Supreme Court decision in Julius Rwabinumi v Hope
Bahimbisomwe40 propound that an equal division is not of every case; however, the courts
should be guided by the circumstances of each individual case to reach such a decision since if
they both contribute by their joint efforts, the prima facie inference is that it belongs to them
both equally at any rate as Lord Denning stated in the former. Therefore in as much as the law
on marital property division seems to be well settled in the Supreme court case of Julius
Rwabinumi v Hope Bahimbisomwe41, it should be noted that the supreme court still made
references to already decided cases of Kagga v Kagga42, Chapman v Chapman43, Muthembwa v
Muthembwa44 but failed to make a final ruling on what methods to be employed in quantifying
the indirect contribution to arrive at a final percentage in the share of matrimonial property nor
was the fate of matrimonial property in polygamous marriages settled. At this point therefore,
the division criteria basing on the indirect contribution is the existing problem since it is
surrounded with a lot of confusion.

Presumptively, marriage will not affect the ownership of property vested in either of the
spouses at the time .This will also be true of property which is used by them jointly in the
matrimonial home. For example furniture, among others in the absence of an express gift of a
joint interest in law. The income of either spouse whether from earnings or from investment
will primafacie remain his or her own prope1ty. But where the spouses pool their incomes and
place them into a common, it seems that they both acquire a joint interest, in the whole fund.
This occurred in Jones v Maynard45, in 1941 the husband who was about to go abroad and
authorized his wife to draw on his bank account which was there after treated as a joint
account .Into this account were paid dividends on both the husband's and the wife's
investments, the husband's pay and allowances and rent from the matrimonial home which
was their joint and which had been let during the war.

39
[1970] UKHL 3

40
Civil Appeal N0.10 of 2009

41
Civil Appeal N0.10 of 2009

42
High Court Divorce Cause No 11/2005

43
[1969] All ER 476

44
[2002] 1 EA 186

45
(1951) CH 572.
The husbands contributions were greater than the wife's, the spouses had never agreed on
what their rights in this fund were to be but they regarded it as their joint savings to be
invested from time to time. The husband withdrew money on a number of occasions and
invested it in his own name and finally after the spouses had separated in 1946, he closed the
account altogether. The marriage was later dissolved and the plaintiff sued her former husband
for a half share in the account as it stood on the day it was closed and in the investments which
he had previously purchased out of it. Vaisey J held that the claim must succeed. He said, "in my
judgment when there is joint account between husband and wife, a co1mnon pool into which
they put all their resources, it is not consistent with that conception that the account should
thereafter be picked apart and divided up propotionately to the respective contributions of
husband d wife, the husband being credited with the whole of his earnings and the wife with
the whole of her dividends. I do not believe that when once the joint pool has been formed, it
ought to be and can be dissected in any such manner.

In my view a husband's earnings or salary when the spouses have a common purse and pool
their resources, are earnings made on behalf of both and the idea that years after wards the
contents of the pool can be dissected by taking an elaborate account as to how much was paid
in by the husband or the wife is quite inconsistent with the original fundamental idea of a joint
purse or common pool. What then constituents a common purse? It would seem on principle to
be essential that there must be a fund intended for the use of both spouses from which either
may withdraw money and this will nonnally take the form of a joint bank account On the other
hand, if the husband is the sole contiibutor, the presumption of advancement will operate so as
prima facie to give her an interest but this will be rebutted if for example it can be shown that
the power to draw on the account was given for the husbands convenience by enabling the
wife to draw cheques for the payment of housekeeping expenses. Even though the beneficial
interest in a joint account is initially vested in one spouses alone , his or her intention may
change and it may be converted into a joint interest. The comts will probably tend to find a joint
beneficial interest today much more readily than they did in the past. If either spouse with
draws money from the common purse, property bought with it will primafacie belong soley to
that spouse if it is for his or her personal use for example clothes but to both jointly ifit is for
their joint use for example a car, investments purchased by means of the common purse will
similarly belong to the purchaser will similarly belong to the purchaser unless it is clear that
they are intended to represent the original fund.

In Re Bishop46, large sums had been withdrawn by both spouses to purchase investments in
their separate names. In many cases blocks of shares were bought and half put in one name
and the other half put in the other, other money was spent in taking up shares offered to the
husband by vi1tue of rights which he possessed as an existing share holder in the companies
46
(1965) Ch 450.
concerned. In these circumstances, Stamp J had no difficult in holding that the presumption
could not be rebutted and that the spouse in whose name the shares had been purchased was
entitled to the whole beneficial interest in them

The property a couple chooses to call a home will be considered joint matrimonial property.

Section 2 of the mortgage Act47 defines Matrimonial home to mean a building or part of a
builidng in which husband and wife or as the case maybe wives and thier child ordinarily stay
together.

This together with the property either of the spouses contributes to is what matrimonial
property is. Summarily, Bbosa J in Muwanga v. Kintu48 held that’ the property to which each
spouse should be entitled is that property which the parties chose to call home and which they
jointly contribute to.”

Section 6 provides for consent to mortgage of matrimonial home and a penalty if not complied
with. Where a matrimonial home is the subject of an application for a mmtgage, a mortgagee
shall satisfy himself or herself that the consent of a spouse referred to in section 5 is an
informed and genuine consent and that duty is deemed to have been complied with if a) the
mortgagee has

I) explained to the spouse or spouses of an applicant for a mortgage in the presence of an

independent person, the tenns and conditions of the mortgage which is being applied for or

ii) In writing advised the applicant for a mortgage that he or she should ensure that his or her
spouse or spouses receive independent advice on the tenns and conditions of the mortgage
which is being applied for and

b) The spouse or spouses as the case may be provide a signed and witnessed document to the
effect that they have received independent advice on the mortgage which is being applied for
and have understood and asserted to the terms and conditions of the mortgage or that they
have not withstanding the advice from the mortgagee, waived their right to take independent
advice.

3) A mortgagee may take such other steps in addition to the steps sets out in this section as he
or she considers necessary and desirable to satisfy himself or herself that the assent of the
spouse or spouses is informed and genuine.

47
Act of 2009

48
supra
4) Where a person holds out to be providing independent advice as provided for under this
section (l) (a) (ii) such a person shall be liable on conviction to a fine not exceeding one hundred
twenty currency points or to imprisomnent not exceeding sixty months or both

The following donot amount to Matrimonial Property

Bank Accounts

From the premise that women and men can own property separately, it is also possible for
husband and wife to own separate accounts and it's also possible for them to own joint
accounts. With regard to joint accounts, where the spouses pull their incomes and place them
into a common fund, the law appears to be that both acquire a joint interest there in. However,
several issues may anse with regard to the share of joint interest particularly considering the
fact that they may each mare different deposits and different withdrawals. In Jones v
Maynard49 the husband authorized his wife to draw on his bank account which was there after
treated as a joint account. Further into this account was deposited the dividends from both the
wife's and husband's investments. Generally the husband's contribution into this account was
greater than that of his wife. The two had agreed on what their rights on this fund were to be,
but they generally regarded this fund as their joint savings to be invested from time to time.
From time to time, the husband withdrew money and invested it in his own name
subsequently, the two separated and the husband closed the account. The marriage was
dissolved and the wife sued for half share in the account. Court held that regardless of these
differences in contributions and withdrawals, the two are equally entitled, Where both spouses
contribute to this fund, the intention to create a joint account will be imputed to the patties in
the absence of any other agreement. But where the fund is delivered from the income of one
spouse alone, the presumption will not arise as general rule but it's a question of fact whether
the account is to remain his or her exclusive property or whether there's intention to establish
a common fund. For investments purchased from the joint fund, property you buy from the
joint account is your property generally if either spouse withdraws money from a joint account.
Property bought with that money p1imafacie belongs to that spouse and not to both jointly.
This presumption however may be rebutted for instance with regard to investments which may
be held to represent the original fund. But with regard to property meant for personal use, this
presumption may not be rebutted. In Re Bishop50 , large sums of money were drawn by spouses
to purchase investments in their separate names. In many cases share were bought and half
put in one name and another half put in the other. It was held that the presumption could not
be rebutted that property belonged to each of the spouses and that the spouse in whose name
the shares had been purchased was entitled to the beneficial interest there in. However, this
49
Ibid.

50
Ibid.
approach may concessionary yield some injustice because making savings out of housekeeping
allowances may involve some skills for example search for markets, some sacrifices, bargaining
capacity among others. In Green Wood v Martins Bank51, the plaintiff had an account with the
defendants bank The wife of the plaintiff had over a period of time forged her husband's name.
On the wife's request, the husband had refrained in from notifying the bank about the frauds.
When the husband tln·eatened to notify the bank, the wife committed suicide. The husband
brought an action for the amount paid by them on a forged signature. The claim was rejected
because the plaintiff had breached his duty of infonnation the bank of forgeries. It was held
that deliberate abstention from speaking in those circumstances amounted to representation
that the forged cheques where in fact in order and assuring that the fact followed by the bank,
they were all element for an estopel

Separate property remains separately

In general, separate property for instance all property remains the property of the person who
owns it kind it is not divided. It includes property that the paities owned before the marriage
onwhen the relationship began and that they kept separate during it. Any gifts and inheritances
that the patties received during the marriage or relationship and that they kept separate.
Separate property also includes all, property acquired out of separate property and the
proceeds of selling any separate property. If an increase in the value of one's party is separate
property or any income or gains derived from the property is caused wholly or pattly by the
actions of the other patty, the increase or the income or gains is treated as relationship
property and is divided according to each patty's contributions to the increase. This applies
whether the other party's actions caused the increase directly or indirectly. The general
principles ofislamic law makes no distribution between various kinds of prope1ties for the
purposes of succession whether the property is real or personal , ancestral or self acquired
cmpus or usufmct, movable or immovable is iimnaterial the mies of succession are one and the
same. Also in Islamic teaching, a Muslim woman retains her property and any wages or
earnings acquired or gained by her belong to her. She is entitled to sue in her own name in
respect of contract entered into by her.

Articles 26(2) of the Constitution of the Republic of Uganda 1995 provide that, every person

has a right to do own property either individually or in association with others."

The Quran gives a woman absolute right to own, sell, gift or manage her property. It includes
even the property acquired by her as Mahr. Her husband cannot take it back.

51
(1932)IKB371
Quran 4. 32 states. Unto men afortune_from that which they have earned and unto woman
afortune_from which they have earned but ask Allah of his bounty. Lo: Allah is ever knower
of all things.

Agreements to divide relationship property

If the parties have entered into a valid property agreement, the relationship property will be
divided according to the terms of that agreement. However, the agreement must be made
according to strict requirements including each paity receiving independent legal advice
otherwise the agreement is invalid. If the paities cannot agree on how divide the property, they
can apply to the family comt or High Comt to deal with the question under the provisions of the
Act. In Kaithoum Abdul Wahid Nordin Bin Othman52, the plaintiff wife was divorced by her
husband, the defendant. Dming the marriage they had been given a piece of land on which they
both worked together. Later the husband married a second wife and after that seldom returned
to the house. The land was acquired by the government servants housing corporation and
compensation was paid on condition that it should be divided equally between the husband
and wife. The wife claimed her half share and the sharia high comt gave judgment in her favour.
Holding that the land was jointly acquired and the compensation should be divided equally
between them. Therefore Parties should agree on everything concerning their matrimonial
property and if they fail to agree among themselves, they should seek redress to the coUits of
law and, the assessment of the different contributions made to the marriage, financial
contributions do not rate any more highly than contributions of other kinds, such as caring for
children or performing domestic tasks among others.

The other important legal aspect in relation to matrimonial property is enshrined in section 38
of the Land Act as amended. The section guarantees the security of occupancy of every spouse
on family land. This means that the spouse has a right to have access to and live on family land.
The Land Act as amended under section 39 restricts transfer of family land without spousal
consent. 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.

There have beyen attempts to modify the law relating to matrimonial property in Uganda.
However these attempts have been futile. First was the Domestic Relations Bill 2003. This bill
had been in parliament since 1965. It sought to define matrimonial property thereby clearing
the doubt as to what constitutes matrimonial property. Under clause 65(1), the bill defined
matrimonial property to include the matrimonial home, household property in the matrimonial
home; property acquired during the subsistence of the marriage and deemed to be matrimonial
52
(1990) 9JR 178.
property by express or implied agreement and immovable property owned by either spouse
which is the basic income of the family. This bill was however rejected.

The other attempt has been in the Marriage and Divorce Bill, 2009. This bill was a bit broader
and under Clause 116 it defined matrimonial property to include separate property which a
spouse made a contribution to and seed money by a spouse for establishment of a business.
The bill under clause 123 recognized separate properties even during the subsistence of the
marriage and prohibited taking into account separate property in distributing matrimonial
property. Likewise this bill has never been passed into law.

RECOMMENDATIONS

Due to the existing loopholes in the legal regime governing the division of matrimonial property
at the dissolution of the marriage, the researcher makes the following recommendations to be
considered in narrowing down this gap.

Prenuptial agreements should be made a condition precedent to the marriage contract; a

prenuptial agreement is a contract or an agreement between or among parties to a marriage
laying down property entitlements for each party. This agreement has the capability to lay
down entitlements in the matrimonial property, here parties before contracting the marriage
sit and divide the entitlements accordingly, this enables to completely resolve all contentions
relating to matrimonial property division and it as well ensures uniformity in the division of
marital property since it is already settled even without involving third parties such as courts
and mediators, and it as well limits the application of the scattered laws which may be likely to
cause inconsistencies and uncertainties.

The Parliament and other stake holders in exercise of their mandate as embodied in Article 79
(1) and (2)53 should enact a specific set of laws to widely cover the criteria to be followed in the
division of matrimonial property especially in instances where there has been solely a
nonmonetary contribution of either party, as seen from the regional states such as Kenya,
Rwanda54 who took a step ahead to enact the Matrimonial Properties Act, this will reduce on

53
The Constitution of the Republic of Uganda 1995, as amended which stipulates verbatim that subject to the
provisions of the Constitution, Parliament shall have power to make laws on any matter for the peace, order,
development and good governance of Uganda and Article 7 of The Protocol to the African Charter on Human and
People’s Rights on the Rights of Women in Africa which stipulates that states parties shall enact appropriate
legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of
marriage

54
Francis Emoru (2nd May 2016), Parliament asked to enact Matrimonial Property law, Newvision, Kampala,
Uganda , the writer urged Uganda to pick a leaf from its counterparts Kenya, Tanzania and Rwanda to enact this
law but considering the social values of Uganda
the inequalities, inconsistencies and uncertainties caused by the various case laws on which
Ugandan courts make references to in the Matrimonial property division.

Alternatively, the Divorce Act should be modified or amended; this should be done to include
matrimonial property sharing and modes of quantification as a remedy of divorce and the
criteria for its division should be included while embodying the same with principles of
equitable distribution for all circumstances either direct or indirect so as to resolve the issue of
fairness in the division, furthermore, the division in polygamous marriages should as well be
considered but all this should depend on the existing social values of Uganda at large.

The matrimonial property legal regime as found in scattered statutes and case law precedents
should be gathered, revised and harmonized and consolidated to meet a single resolution of
issues, as Rodgers55 suggests that a 50:50 share should always be the appropriate starting point
and other factors such as education attainment, employability and fault only kick in to add or
subtract from the inherent 50% interest and that case law should only play a role in establishing
the weight to be attached to each of those factors but not to override the existing law 56, this
will wipe out the inconsistencies caused by the scattered matrimonial property laws against the
supreme law and in the end it will create uniformity in the legal regime governing the division
of matrimonial property at the dissolution of the marriage in Uganda.

The parties at dispute in the divorce case where it is in so far as still possible should be given
chance by initiating a session to agree and make a settlement on how their property should be
divided after court’s pronouncement on a decree absolute dissolving the marriage, these are
known as “postnuptial agreements57”, this is so because the parties indeed know who
contributed to what and who deserves what, this should be done without a third party but only
through court guidance to ensure fairness and to eliminate the possibilities of duress or undue
influence, this will enable to reduce the excessive discretionary powers granted to these
courts58 in marital property division since courts here will only be required to endorse and
enforce the outcome of this agreement. This is reflected in the principle of equitable property

55
ME. Rodgers. (2004) Understanding Family Law, Cavendish Publishing Ltd, Wharton Street, London

56
ME Rodgers, (2004), Understanding Family Law, Cavendish Publishing Ltd, Wharton Street, London Pg. 68

57
As recognised under Section 2(1) of the Matrimonial Property Act of South Africa, 1988 which empowers parties
to change their matrimonial property system after marriage but with cogent reasons and at satisfaction of the
court that there is no prejudice to any party, then it can grant.

58
Harret Spiller Dagget, (1939), Division of Property Upon Dissolution of Marriage, 6 Law and Contemporary
Problems, Spring, Page 229 , she considers that vesting courts with discretionary powers in such a circumstance is
to curtail an unnecessary evil since to throw the whole burden upon the discretion of the court is to open greater
doors to instability than ever.
distribution as it considers that if parties can divide the property themselves without wrangles,
then they can do so to resolve this.

The concerned stakeholders for instance Churches, Mosques, Parliament and Local Councils
should be aided by Government to carryout mass education programs through radios,
televisions, communal sensitization in the whole country but with more emphasis in the rural
areas to create matrimonial property awareness to the ignorant people about the subject
matter, this will enable such people to know and fight for their marital property rights, this will
as well wipe out ignorance on the subject matter.

In conclusion, the law relating to matrimonial property has been a shift 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.
BIBLIOGRAPHY

Statutes

1. The Constitution of the Republic of Uganda 1995, as amended

2. The Divorce Act Cap 249

3. The Land Act, cap 227

4. The Marriage and Divorce of Mohammedan Act Cap 252

5. The Customary Marriage (Registration) Act Cap 248

6. The Mortgage Act, 2009

7. The Sale of Goods Act, Cap 82.

Books

1. Jennifer Okumu Wenji. (2011) Weeding the Millet Field: A Women’s Grassroots Justice in
Uganda, LawAfrica Publishing Ltd, Nairobi, Kenya.

2. Katarina Juma and Charles Kanjama. (2009) Family Law Digest, LawAfrica Publishing Ltd,
Nairobi, Kenya.

3. ME. Rodgers. (2004) Understanding Family Law, Cavendish Publishing Ltd, Wharton Street,
London

4. N. V. Lowe and G. Douglas. (2007) Bromley’s Family Law, 10th Edition, Oxford University
Press, London

Related Bills

The Domestic Relations Bill of 2003

The Marriage and Divorce Bill of 2009

The Marriage Bill of 2007