CASE BRIEF: High Court Affirms That Joint Registration of Property Signifies the Parties' Mutual Intent to Co-Own.

AREA OF LAW: Family Law Introduction. David Siriri (the Petitioner) filed a divorce petition against Liz Miriam Namukose (the Respondent) on 13th November 2019, seeking dissolution of their marriage, shared responsibility for their children, and property division. The Respondent contested the petition, filing replies on 19th December 2019 and 20th January 2020. Representation:

📌Petitioner: Gerald Nuwagira of Nuwagira, Tusiime Advocates.

📌Respondent: Dr. Harriet Diana Musoke of Musoke & Co. Advocates. Background:

The parties married on 7th August 1999 at St. Francis Chapel, Makerere, with four children aged 23, 21, 18, and 14. Since 2016, they have lived apart, with the Petitioner alleging cruelty and desertion, including denial of conjugal rights and exclusion from the matrimonial home.

Key Issues for Determination:

1. Validity of the marriage.

2. Grounds for divorce.

3. Responsibility for children’s welfare.

4. Division of matrimonial property.

5. Remedies available to the parties.

   
   

Issue One: Whether there was a valid marriage between the Petitioner and the Respondent?

The court held that there was a valid church marriage between the Petitioner and the Respondent, solemnized on 7th August 1999 at St. Francis Chapel, Makerere University. This finding was based on the presentation of a valid marriage certificate (PEX1) and was supported by Section 31 of the Marriage Act, Cap. 146, which provides that proof of marriage is established by a certificate filed in a Marriage Register Book. Issue Two: Whether there are grounds for divorce?

Cruelty

The court held that the Petitioner provided sufficient evidence of cruelty as defined in Russell v Russell and Kamikaze v Kamikaze, including the Respondent’s verbal abuse, denial of conjugal rights, and physical isolation from the matrimonial home. The Petitioner’s evidence was supported by witness testimony and email correspondences.

The court concluded that the Respondent’s conduct caused a breakdown of the marital relationship and created an environment that was harmful to the Petitioner’s mental and emotional well-being. Based on the evidence, the court ruled that the ground of cruelty was satisfactorily proved.

Desertion Without Justifiable Cause The court applied the principles of desertion as defined in Perry v Perry [1952] and Buchler v Buchler, requiring cessation of cohabitation, intent to abandon, and lack of consent from the abandoned spouse. Evidence demonstrated:

• Over six years of separation, exceeding the statutory two-year requirement.

• The Respondent denied the Petitioner access to the matrimonial home by changing locks and withholding keys.

• Witness testimony corroborated the Petitioner’s account of exclusion from cohabitation.
  

The Respondent’s prolonged absence from the marital home and her withdrawal of marital consortium met the legal requirements for desertion. Who should provide for the educational, medical, and maintenance needs of the children of the marriage?

The court reaffirmed the constitutional duty of both parents under Article 31(4) of the 1995 Constitution and the Children Act, Cap. 62, to provide for their children’s education, medical care, and general maintenance. The focus was on the youngest child, aged 14.

The Petitioner presented evidence of supporting the children’s education and medical needs, while the Respondent accused the Petitioner of unfair treatment. A DNA test confirmed the Petitioner’s paternity of the youngest child, ensuring his entitlement to equal care.

Both parents had contributed to the children’s welfare, with the Respondent primarily covering school fees and medical expenses. The court ruled the Petitioner would provide for the youngest child’s education and medical needs, while the Respondent would handle daily maintenance, ensuring balanced parental responsibilities. What share of the properties in dispute is the Respondent entitled to? The court held that the matrimonial property at Kibuga Block 27, Plot 532, Makerere II, Zone C, should be equally divided between the parties. Despite the Petitioner’s claim of sole ownership, the joint registration of the property in 2001 evidenced their intent to co-own. The Respondent’s financial contributions, including her provident fund, facilitation of loans, and involvement in development, were significant factors in the division.

The Respondent was awarded continued residence in the first-floor apartment, while the Petitioner was allocated the ground floor.

Regarding the Kibuku District property, the court found it to be matrimonial despite the Petitioner’s claim of ancestral ownership. The property was purchased and developed during the marriage, serving as a family home. The Respondent was entitled to 40% of its value, with compensation determined by an independent valuer.

For the Bukoto land at Kyadondo Block 213, Plot 1988, the court acknowledged contributions from both parties. The Respondent was awarded 20% of the sale value as fair compensation for her contributions, providing a clean break for the parties.

KEY TAKEAWAY Equal sharing is the default principle for matrimonial assets unless there are justified reasons to depart from this standard, such as the distinction between matrimonial and non-matrimonial property.

RULE Matrimonial property is subject to equal sharing unless non-matrimonial assets or other factors provide sufficient justification for deviation.

ANALYSIS In the case at hand, the court reiterated the established principle that equal sharing in marriage dissolutions begins with the presumption of equality. Drawing on the judicial definitions in Miller v Miller and McFarlane v McFarlane [2006] UKHL 24, the court referenced Lady Hale’s and Lord Nicholls’ interpretations, emphasizing that non-matrimonial assets, such as pre-marital property, inheritance, or gifts, may not be subject to equal division unless they have been matrimonialized during the marriage.

The court considered the nature of the assets in dispute and the duration of the marriage. It applied the constitutional principles of fairness and equity under Article 31(1)(b) of the Constitution of Uganda, which guarantees the right to property and its fair distribution upon dissolution of a marriage.

The court reaffirmed its broad discretion in determining the extent of the Respondent’s entitlement to the property, ensuring that the division aligns with both the constitutional and equitable principles. However, where assets were acquired before the marriage or through inheritance, these may be excluded from equal sharing unless they were treated as joint assets during the marriage. By Waboga David Read the full case below https://ulii.org/akn/ug/judgment/ughcfd/2024/82/eng@2024-11-22