The term divorce is not defined in the divorce act but basically means a formal dissolution of marriage based on appropriate and applicable grounds under the relevant law. The grounds for divorce depend on the nature of marriage and the rules and procedures that regulate such a marriage as well as its dissolution.
Other than death which automatically dissolves marriage in all other cases marriage can be dissolved on recognised grounds either under a divorce Act or under applicable customs as provided for in Article 37 of the constitution which provides that “Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others”, or under Islamic faith and in accordance with principles and procedures applicable there under.
LAW APPLICABLE FOR DIVORCE
Divorce is governed by a number of legislation including constitution Article 31(1) which provides that “Men and women of the age of eighteen years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.”, Divorce Act Cap 249, Customary marriage registration act Cap 248, the marriage and divorce of the Mohammedans’ act, the judicature act section 14, common law and doctrines of equity and Divorce rules. Julius Rwabinumi v. Hope Bahimbisomwe, Civil Appeal No 30/200 C.A
PRELIMINARY FOR DIVORCE UNDER THE DIVORCE ACT
Jurisdiction is very important in divorce, it is important to identify the court with prerequisite jurisdiction to entertain the petition for the purpose of divorce under the divorce act.
Jurisdiction is provided in Section 3 of the divorce act.
(1) Where all parties to a proceeding under this Act are Africans or where a petition for damages only is lodged in accordance with section 21, jurisdiction may be exercised by a court over which presides a magistrate grade I or a chief magistrate.
(2) In all other cases jurisdiction shall be exercised by the High Court only.
DOMICILE
In order for a court to make a decree for dissolution of marriage, the petitioner must prove to the court that at the time which the petition is presented he/she is domiciled in Uganda. This section was subject of judicial separation in the case of Joy Kigundu v. Aggrey Awori [2001-2005] HCB 122. The court held that section 2 currently section 1 of the divorce act is to the effect that a decree for the dissolution of a marriage cannot be made unless the petitioner is domiciled in Uganda at the time which the petition is presented. In the instant case the petitioner was domiciled in Kenya and the High Court of Uganda in the circumstances had no jurisdiction to entertain her petition for the dissolution of marriage.
There are various ways or forms in which parties may acquire domicile in Uganda.
~Marriage; this arises in relation to married women whose domicile depend on the domicile of the husband as long as he is alive. In the case of Joy Kigundu (supra), the court observed that during the life time of the husband, the wife cannot acquire domicile of her own separate from that of the husband because domicile of married women depends on the husband and since her husband was domiciled in Kenya her domicile was also in Kenya.
~Domicile of choice; it is possible for parties to marriage to acquire domicile of Uganda by choice, in order to satisfy the court that the parties have acquired domicile of choice, they must prove that they have abandoned their domicile of origin and they have settled intention to permanently stay in Uganda.
Tatiana Adebiyi v. Adebi Adenji [1990-1991] KALR 36
Thornhill v. Thornhill [1965] E.A. 268
McKay v. McKay
Lyon Zimblai
Domicile maybe proved by the petitioner’s evidence by way of affidavit. Thornhill & McKay. The burden of proof of domicile lies on the petitioner and the standard of proof vary depending on whether the petitioner is relying on her domicile or on the domicile of the other party to the marriage. Lyon’s case
GROUNDS FOR DIVORCE
In a petition for divorce, it’s incumbent on the petitioner to prove existence of a valid marriage domiciled in Uganda, the grounds for divorce and absence of any bars to the divorce. Whan v. Giggon, he must prove that he is an African for purpose of jurisdiction.
Section 4(1) of Divorce Act allows the husband to apply to the court by petition for dissolution of marriage on the ground that since the solemnisation of their marriage his wife has been guilty of adultery.
In Norman v. Norman, it was held that adultery means adultery given the natural and the ordinary meaning of the word.
In section 4(1) the issue that the husband will only petition only on the ground of adultery, the words were so clear and should not be construed as giving the husband any other ground to petition for divorce.
However, the constitutional court took a different view in Uganda Association of Women Lawyers v. Attorney General (FIDA case) wherein they stated that each of the ground in section 4 is available for both the husband and the wife and this is the law. According to section 4(2) a wife may apply by way of petition.
a) ADULTERY
Is available for both the husband and the wife by the virtue of constitutional court decision in Uganda Association of Women Lawyers & 5 others v. A.G.
In Dr Kazibwe’s case, the court noted that the position of the law is that both adultery and cruelty are distinctive grounds each on its own rights upon which a decree for dissolution of marriage may be issued. The petitioner (wife) could therefore obtain a decree for divorce after proving to the satisfaction of the court either the ground for adultery or cruelty or both.
Adultery has been defined as consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not being the other spouse. It is sexual intercourse between two persons one of whom or both who may be married but not to each other. Habyarimana [1980] HCB 139
The burden of proof lies on the petitioner to satisfy the court that indeed there was adultery committed by the respondent. In Mary Ruhara v. Christopher Ruhara, it was held that the basic rule as established by case law is that in cases of adultery the burden of proof lies on the petitioner and it is heavier burden than that that lies on a party to an ordinary civil action though it is not high as in criminal cases.
In order to constitute adultery as a ground for divorce, there must be penetration of female organ by the male organ. In Dennis v. Dennis, SINGLETON LJ stated that there is no distinction to be drawn between the words “sexual intercourse” in the definition of “adultery” and “carnal knowledge” in the criminal law. It must be shown that there is some penetration. In matrimonial suits it is not often possible to give direct evidence of sexual intercourse. The practice is stated by the late MR William Rayden in the first edition of his book (at p 63) published in 1910:
“It will not be out of place here to consider the nature of the proofs which will satisfy the court that adultery has been committed: to succeed on such an issue it is not necessary to prove the direct fact, or even a fact of adultery in time and place; for if it were, in very few cases would that proof be attainable; it is rarely indeed that parties are surprised in the direct act of adultery; and such evidence is apt to be disbelieved: in nearly every case the fact is inferred from circumstances, which lead to it, by a fair inference, as a necessary conclusion; and, unless this were so held, no protection whatever could be given to marital rights.”
It is important that the petitioner should adduce evidence to corroborate the alleged adultery. In Ruhara v. Ruhara, it was stated that in proving adultery, the court would normally look for corroboration but direct evidence apart from that of the petitioner is seldom available. Corroboration can also be sought from the previous or subsequent conduct of any party to the proceedings if that conduct influences any fact in issue (s.7 evidence act).
It has also been suggested that in case of adultery, it is not necessary to prove a direct fact of adultery. Adultery can be proved by circumstantial evidence as long as that evidence is cogent to the extent that it raises no other inference other than the fact that the respondent committed adultery.
George Nyakairu v. Rose Nyakairu,
In the case of Rapsin v. Rapsin, the issue was whether evidence of hotel receipts, register and evidence from the waitress was sufficient to prove adultery.
Held, where there is no direct evidence, the court may rely on circumstantial evidence to make an inference as to the existence of adultery and hotel receipts and register could constitute sufficient corroboration as evidence to substantiate allegation of adultery.
Where an allegation of adultery made against the wife, she may in order to rebut that allegation prove that it was not consensual. The burden lies on her to prove lack of consent. Redpa …………. 1950 All ER 600
Standard of proof is discussed in the case of Habyarimana. The standard of proof is well settled where there is an allegation of adultery, it must be proved to the satisfaction of the court, while the evidence did not reach certainty, it must nevertheless carry a higher degree of probability. In Dr Specioza’s case, it was stated that it is not ordinary but beyond reasonable doubt.
Adultery may be proved by the evidence of the accused. in Specioza’s case, the court noted that whereas adultery can be proved by petitioner by direct or circumstantial evidence, it may be proved by admission by the party against whom it is alleged. Once admitted it need not be proved and the person making the claim is entitled to judgement upon admission.
Preston-Jones v Preston-Jones
The husband was absent from the United Kingdom from 17 August 1945, to 9 February 1946. On 13 August 1946, the wife gave birth to a normal child, and the husband brought a petition for dissolution of marriage on the ground of her adultery, the charge being based on the fact that a period of three hundred and sixty days elapsed between 17 August 1945, and 13 August 1946, from which, it was alleged, it followed that the child must have been conceived in adultery.
Held, though a finding of adultery against a wife might have the effect of bastardising her child that did not mean that a degree of proof of adultery was required such as in a scientific inquiry would justify the conclusion that such and such an event was impossible. No higher proof was demanded than that the fact should be established beyond reasonable doubt, and in the present case all the court could demand was that it should be established beyond all reasonable doubt that a child born three hundred and sixty days after a particular coitus could not be the result of that coitus. On the evidence in the present case it was proved beyond reasonable doubt that the husband was not the father of the child, and he was entitled to a decree.
Where the petitioner relies on adultery as a ground for divorce, it is essential that the respondent be guilty of adultery and the petitioner must be innocent.
Christopher Kivumbi, the court noted the petitioner on his own admission was continuously involved in adultery and could not be aggrieved with the adultery of the wife.
However, a petitioner who si guilty of adultery may apply to court to have such adultery condoned by court and if a proper application is made and granted by a court the petition for divorce may be allowed.
Where the petition is commenced by the husband, section 5 requires that the alleged adulterer be made a co-respondent to the petition.
A husband may by petition claim damages from the person who commits adultery with his wife, however an equal provision is envisaged by the virtue of constitutional court decision in Uganda Association of Women Lawyers case
Kagimu v. Kagimu
b) CRUELTY
Section 4(2) of the divorce act allows the wife to petition for divorce on the ground of adultery coupled with cruelty. However in view of constitutional court pronouncement in Uganda association for women lawyers, the ground of cruelty alone can be relied on by either party.
In Kazibwe v. Kazibwe, it was held that the petitioner could obtain a decree of divorce after proving to the satisfaction of court either the ground of adultery or cruelty or both. Even a husband can be a victim of cruelty.
Divorce act does not define what amounts to cruelty as a ground to support dissolution of marriage; nevertheless judicial creativity has laid down the meaning of cruelty. In Habyarimana v. Habyarimana, it was stated that no conduct can amount to cruelty in law unless it has the effect of producing actual or apprehended to the petitioner’s physical or mental health.
In order to constitute cruelty, the petitioner must prove that the respondents conduct constitutes danger to life, limbs or health, bodily or mental or a reasonable apprehension of it. Kasasa v. Kasasa 1976 HCB 348
In order to constitute legal cruelty, the conduct of the respondent must be serious. The rule implies that the conduct and nature of cruelty of the respondent must be beyond the reasonable wear and tear of married life. In Mary Ruhara v. Christopher Ruhara, it was held that scalding a person with burning oil would be the most cruel and brutal act and a clear injury to life and limb.
In order to determine whether a conduct amounts to cruelty, the general rule is that the whole matrimonial relationship must be considered and the rule is of special value where cruelty consists not of violent acts but injurious reproaches, complaints accusations and taunts.
In Habyarimana’s case, the court noted before coming to a conclusion as to whether the respondents conduct amounts to legal cruelty, the court must consider the impact of the personality and conduct of one spouse or mind of the other and all incidents and quarrels between the spouses must be weighed from that point of view and regard must be heard on the circumstance of each case and the mental and physical conditions of the parties, their characters and social status. It has further been suggested that in deciding whether a particular conduct amounts to cruelty as a matrimonial case, the whole matrimonial relation, the entire conduct, the personality, the character and the social status of the parties must be taken into account. Kagimu v. Kagimu.
The burden of proof lies on the petitioner to prove that the acts or the conduct of the respondent amounts to legal cruelty. In Gakwavu v. Gasengyre, the court noted that in a petition based on cruelty, courts cannot examine every squabble in relationship. The standard of proof is not beyond reasonable doubt as require in criminal cases, like adultery the standard of proof in cruelty is slightly higher than the preponderance of probability required in ordinary civil cases.
col…….. 1965 EA 132
Collins v. Collins 1964 AC 644
Musinga v. Musinga KALR
Where the spouse deliberately and persistently refuses to have children and leaves her in despair and affects her mental health, it is sufficient ground.
In Knott v. Knott 1995 2 All ER 405
c) DESERTION
A spouse may petition for divorce on ground of desertion by the other spouse for two years without reasonable excuse. Kazibwe v. Kazibwe.
Desertion has not been defined in the act but case law has provided the various elements that may constitute matrimonial offence of dersertion.
Departure/withdrawing from the society of the other spouse.
De facto separation of the spouses.
Withdrawing from cohabitation on the part of the deserting party.
An intention to depart for two years (animus diserendi).
The desertion must not be based on reasonable excuse and the person deseted must not have consented to it.
N/B. The desertion must still be running at the commencement of the proceedings.
In cases of de facto separation, there must be evidence of complete cessation of cohabitation otherwise partial neglect of obligation in marriage is not enough.
Perry v Perry 1952 1 All ER 1075
The parties were married in 1939, and in May 1951, the husband presented a petition for divorce alleging that his wife had deserted him from July 1944, to the date of the petition. In December 1949, the wife asked the husband for financial assistance. He thereupon visited her and during the period from that date to March 1950, he went to see her once a fortnight. On each visit he asked her to resume married life with him, but she refused. On either two or three of these occasions he had sexual intercourse with her, as a result of which she gave birth to a child on 6 December 1950, but at no time did the wife resile from her firm and constant intention never to return to her husband.
Held, though sexual intercourse was beyond doubt a most important incident in the marital relationship, an act, or two or three acts, of intercourse could not be regarded as proof of the resumption of marital relationship where a wife, though participating in such acts, in all other respects repudiated the relationship, and, accordingly, on the facts of the present case the wife had not resumed cohabitation so as to interrupt or terminate the period of desertion.
Desertion does not necessarily mean and constitute withdrawal from a place but constitutes withdrawal from state of things.
Pulford v. Pulford 1923 P
Where the spouses are living together in the same house, the test applicable is whether they are living as two households or one. The petitioner in that case must prove that all matrimonial services and any form of normal life has ceased.
Baker v Baker
On an undefended petition for divorce brought by a husband against his wife on the ground of desertion it was proved that for more than three years before the presentation of the petition the parties had lived in the same house, which belonged to them both, but each occupied a separate bedroom and sitting-room and cooked their own food separately. During that time the husband had not paid any allowance to the wife. They shared the kitchen and the passages and other parts of the house, but whenever possible they avoided meeting.
Held – On these facts the parties had ceased to be one household and had become two separate households, and the wife had deserted the husband.
The petitioner must prove that the deserting party left without consent and presence or absence of consent may be strictly construed e.g. expressly by judicial separation or implied from the conduct of the parties. For it to suffice, consent must be freely given.
Patel v. Patel
The burden of proof is on the petitioner to prove to prove the wife had left his home without consent and without intention of returning and on such proof evidential burden shifts on the respondent that there was reasonable excuse for departure.
Where parties consent to separation and one party withdraws the consent in appropriate circumstances the continued absence of the respondent may amount to desertion.
Where consent to live apart is conditional, and the spouse fails to satisfy that condition the consent ceases to operate and the continued separation may amount to desertion.
Kllin 1953 2 All ER 301
Gatward v Gatward (consequences of discharge of judicial seperation)
In an undefended petition for divorce on the ground of desertion, it appeared that the petitioner was deserted by her husband in July 1931, and that she had obtained a maintenance and separation order from magistrates in the following December. The order contained a provision that the petitioner should no longer be required to cohabit with her husband, but, in June 1938, on an application by the petitioner, the magistrates made an order deleting this clause. At the time of the deletion of the non-cohabitation clause, the petitioner had no intention of returning to her husband, and she applied for its deletion so as to be able to obtain a decree of divorce at the expiration of 3 years. Though served with the proceedings, the husband made no attempt to resume cohabitation. The petitioner contended that the desertion, which ceased to run on the making of the original order, was reconstituted when the non-cohabitation clause was deleted in 1938:—
Held – desertion was not automatically reconstituted by the deletion of the non-cohabitation clause, and it was necessary for the wife to prove further facts from which the court could infer that desertion had been reconstituted. In the present case, the husband’s conduct since the deletion of the clause was sufficient proof that desertion had been reconstituted in 1938.
Predie 1944 EACA 42 (consequences of breaking a continuous period of desertion)
The mere fact that parties reside together does not exonerate the party from being in desertion of the other especially where there is no sexual intercourse.
In Hutchingson v. Hutchingson, the husband was living apart from the wife but agreed to resume cohabitation on condition that there would be no sexual intercourse and the wife was not prepared.
Issue, whether that amounted to desertion?
Held, the husband insistence on refusal of sexual intercourse as a condition for presumption of cohabitation constituted to desertion.
However, where spouses refusal to have sexual intercourse is founded on medical/biological reasons, that might not amount to separation. On the same note it is important to note that structural incapacity to have sexual intercourse does not amount to desertion.
Beevor v Beevor
The parties were married on 4 April 1923. A son was born to them in Feb 1925, and from that time onwards the respondent wife consistently refused to have sexual intercourse with the petitioner husband in spite of his warning that he would leave her if she persisted in the refusal. The petitioner had treated her with affection and tolerance but, as she still continued in her refusal, he left the matrimonial home in May, 1940. From the evidence it was found that the respondent had developed an invincible repugnance to the sexual act. The petitioner filed a petition for divorce on the ground of desertion, contending that the respondent’s course of conduct drove him away and that, therefore, she was the deserter. The respondent contended that the departure of the petitioner constituted desertion and asked for the dissolution of the marriage:—
Held – The evidence led to the same conclusion as though the respondent wife had been rendered structurally incapable of intercourse by some accident or disease and that afforded no ground for the petitioner to leave her. The petitioner, therefore, by his departure had deserted the respondent, who was entitled to a decree.
Constructive desertion; this is a creature of case law. it arises where one of the spouses conducts him/herself as to make it impossible for the other spouse to continue living with him or her in the same matrimonial home. Desertion is not necessarily withdrawing from matrimonial home but state of things, the test is whether the spouses are living together as a husband and wife.
“In constructive desertion the spouse charged must be shown to have been guilty of conduct equivalent to ‘driving the other spouse away’: per
BUCKNILL, J., in Boyd v Boyd ([1938] 4 All E.R. 181 at p 183); from the matrimonial home and to have done so with the intention of bringing the matrimonial consortium to an end. In each case the intention may, of course, be inferred if the circumstances are such as to justify the inference.”
Bartholomew v Bartholomew
In December, 1945, the husband returned from war service and complained of the dirty condition in which the wife was keeping herself, the matrimonial home, and the children, and in March, 1946, he left, telling the wife that, if she failed to effect an improvement, he would not return. He complained that she failed to improve the conditions, and he refused to return to her. On a petition by him for divorce on the ground of constructive desertion,
Held – The fact that a wife was dirty in her person and her home was not of necessity evidence which showed that she wished to bring the matrimonial consortium to an end; she might be dirty because she was lazy or lacked energy; the conduct of the wife in the present case was not of such a grave and convincing character as to justify an inference of an intention by her to drive the husband away from the matrimonial home; and, therefore, she was not guilty of constructive desertion.
DENNING LJ. I agree. On the findings of the commissioner the wife was a lazy and dirty woman who did not keep the house or the children in a clean and proper state, so much so that on that account the husband left the house. That is not sufficient to make the wife guilty of constructive desertion. The essential element of intention is wanting. The wife had no wish that the husband should leave. There is no evidence that the wife intended to bring the matrimonial consortium to an end, and there is no ground for inferring any such intention. Without such intention constructive desertion cannot be found.
The law about constructive desertion was laid down by Bucknill J in 1938 in Boyd v Boyd, in terms which were quoted with approval by Lord Greene
MR in Buchler v Buchler, in the passage my Lord has read, and the judgment of Bucknill J was explicitly approved by this court in Hosegood v Hosegood.
The judgments in Hosegood v Hosegood were considered judgments, and I know that Bucknill LJ agreed with what I said about the nature of constructive desertion. Winnan v Winnan, in which the wife kept a large number of cats in the matrimonial home, must have depended on special evidence available to show that she intended to bring the matrimonial consortium to an end in that she preferred the cats to her husband. In the present case I see no evidence, and no ground for inferring, that the wife intended to bring the matrimonial consortium to an end. The real thing for the husband to have done would have been to buckle to himself and seen that the house and the children were kept in proper order. Instead of doing that, he left the house and his children, and was himself the deserter. Accordingly, I agree that the appeal should be allowed.
In a petition for divorce, the petitioner must prove not only prove marriage, domicile and ground for divorce but in addition must prove to the satisfaction of the court that he/she has not been accessory to or has not connived or condoned or the petitioner has not been prosecuted in collusion. That implies that where there is evidence of connivance, condonation or collusion even if the petitioner has satisfied the grounds the court may not grant the petition.
N/B. condonation, connivance and collusion are absolute bars to divorce. Section 8 of the Divorce Act Cap 249 provides that a petition shall be granted;
(1) If the court is satisfied that the petitioner’s case has been proved, and does not find that the petitioner has been accessory to or has connived at the going through of the form of marriage or the adultery, or has connived at or condoned it, or that the petition is presented or prosecuted in collusion, the court shall pronounce a decree nisi for the dissolution of the marriage.
(2) Notwithstanding subsection (1), the court shall not be bound to pronounce the decree if it finds that the petitioner has during the marriage been guilty of adultery, or been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty to the respondent, or of having deserted or wilfully separated himself or herself from the respondent before the adultery complained of, and without reasonable excuse, or of such wilful neglect of or misconduct towards the respondent as has conduced the adultery.
d) COLLUSION
It connotes an improper agreement or bargain by the spouses to the effect that one of them should bring proceedings against the other for purpose of obtaining divorce. In Brine v. Brine, 1924 SA SR 432 Sir Francis defined collusion to mean an agreement express or implied between the petitioner and the respondent for the purpose of obtaining a divorce contrary to the justice of the case.
The reasonable inference drawn from the foregoing point is that the object of the agreement is to deceive or impose upon the court by way of evidence that false witness shall be supplied to the court or material fact withheld from it.
In Barlow v. Barlow, 1937 SA SR 246 it was stated that the test applicable to determine whether there is collusion, is for the court to find out whether there has been such an agreement in fact or not and it is a question dependent on the circumstances of each case. The mere fact that the respondent has not defended the petition is not enough to constitute collusion. In Patel v. Patel, the respondent sent a lawyer and said he had no ground for opposing the petition.
Where the petition is initiated, procured and conducted especially without being defended on the basis of an agreement between the parties and as a result relevant material is withheld from the court with the intention of facilitating a ground for divorce, such arrangement constitutes collusion.
Stavridis v. Stavridis, collusion may be inferred from the circumstances under which a petition is instituted. In Gabric v. Gabric, the court noted that there was collusion in the institution of a suit for divorce when the commencement of the suit was brought about by an agreement by the co-respondent to deposit a sum of money for the petitioner’s costs of suit and of obtaining evidence, and by an agreement by the respondent to supply an address where necessary evidence would be obtained, and the deposit and information were in turn brought about by an undertaking on the part of the petitioner not to seek custody or damages.
It is ordinarily enough to constitute collusion where the agreement between the parties prevents the respondent from asserting material facts which amounts to withholding substantial evidence from court. In Hubbard v. Hubbard, the court noted that there had been a bargain between husband and wife that the husband would not present his side of the facts so that an intended result was that the court would be deprived of relevant evidence which might affect its conclusion. The court further noted that this constituted to collusion with intent to cause a perversion of justice.
Where defence is abandoned for a consideration there is collusion as stated in Grose v. Grose, collusion would arise where parties agree not to urge a substantial and bonafide defence which would by virtue of that agreement, deprive the court of an opportunity of fulfilling its statutory functions of determining the issues involved and which would lead to a decree or order being improperly obtained.
In Shaw v. Shaw, it was observed that where there is an agreement for consideration to withhold evidence, which if believed, would establish that the court had no jurisdiction to hear the suit, then that agreement would seem to be collusive.
It is also important to distinguish between the two types of collusive bargain. A collusive bargain which in the ordinary meaning of the word is corrupt, remains an offence legally and morally e.g. procurement of a decree upon a false case or improper pressure by financial bribes or threats upon the spouse to bring a suit or abandon a defence.
The other collusive bargain depicted in Nash v. Nash, is a collusive bargain which represents an honest negotiation between the parties which is not intended to deceive the court either by putting forward false evidence or suppressing or withdrawing a good defence.
Colbec v. Colbec [1961] EA 431
Where the petitioner is proved to have colluded in presentation of the petition, section 7 empowers the court to dismiss the petition. “The petition shall be dismissed if the court is satisfied that the petition is presented or prosecuted in collusion with either the respondent or co-respondent.”
e) CONNIVANCE
Connivance connotes behaviour of a person designed to cause his/her matrimonial spouse to commit a matrimonial offence such as adultery, this implies that the petitioner has consented to the matrimonial offence.
In Godfrey v. Godfrey it was stated that where a man wilfully consents to his wife’s adultery, he is deemed to have connived and is guilty of wicked and disgraceful conduct that he should not be allowed to complain of that or any subsequent adultery.
Poulden v. Poulden [1838] All ER 508
In order for a petitioner to succeed, there must be evidence that the adultery originary being the subject of connivance is not the proximate cause of the subsequent adultery which is now the subject of consequent petition.
Court in Godfrey categorised connivance into two; the first and the most prominent being in regard to a position of a conniving husband. The court noted that a man who consents to his wife’s adultery is guilty of that and subsequent adultery. The court however noted that it may be possible for such a husband to obtain relief on basis of subsequent adultery where he satisfies the court that the connivance was spent.
The maxim once connivance always connivance is no longer a valid representation of the law in so far as it doesn’t accommodate exceptions otherwise, as long as the connivance is the proximate cause of subsequent adultery it is not spent.
Gipps v. Gipps 1864 HL
Gost v. Gost [1952] 2 All ER
Douglas [1959] 2 All ER 748
Woodbury [194-] 2 All ER 654
The court must consider the conduct of the petitioner as a whole or for a reasonable time to ascertain whether there was wilful consent to future adultery.
It is also important to prove that the party condoning was aware of matrimonial offence being committed.
Butch v. Butch
The wife discovered that the husband had relations with other women, in order to keep the marriage intact, she told the husband an isolated case of adultery between her and a Canadian, the husband left the matrimonial home and petitioned on the ground of the wife’s adultery.
Issue, whether the husband had condoned or connived on the wife’s confession?
Held, in absence of evidence that the husband was aware of the wife’s adultery, it would not be said that the husband had connived.
f) CONDONATION
This means forgiving a matrimonial offence or turning a blind eye on it where a spouse knows the other has committed a matrimonial offence and forgives expressly or by necessary implication and conducts himself in such a way that he believes that he is forgiven that amounts to condonation.
According to section 9 of the Divorce Act, adultery shall not be deemed to have been condoned unless conjugal cohabitation has been condoned or subsequently continued.
Ross
Christina v. Omari
DISCRETIONARY BARS TO DIVORCE
The court has powers to decide where the petitioner is at fault e.g. of adultery, or where the petitioner has taken too long or has reasonably delayed with presentation of petition or has been guilty of cruelty or desertion, the court shall not be bound to pronounce a decree. Section 8(2) of the Divorce Act “the court shall not be bound to pronounce the decree if it finds that the petitioner has during the marriage been guilty of adultery, or been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty to the respondent, or of having deserted or wilfully separated himself or herself from the respondent before the adultery complained of, and without reasonable excuse, or of such wilful neglect of or misconduct towards the respondent as has conduced the adultery.”
Kerr v. Kerr
Kivumbi v. Kivumbi, the petitioner should apply to the court to condone adultery.
Prince v. Prince 20 KLR 121 Unreasonable delay in presenting the petition
Medcalfe
PROCEDURE FOR DIVORCE
Section 30 is the law that regulates procedure of divorce regulated by the civil procedure Act and the rules made there under. S 31 provides that proceedings are commenced by way of petition which must state in the facts on which the petition is based and shall be verified by an affidavit. The affidavit must state there is no collusion or connivance between the petitioner and the respondent.
Where there are issues, the petitioner should indicate the names of the children and their ages. The petition should show existence of marriage and where it was contracted from.
The petition should state the ground relied on and the facts conferring jurisdiction on the court.
The petition may also pray for maintenance, custody and distribution of property and indicate those properties. The same principles apply to company properties since it is a distinct entity.
Rwabinumi
The petition must be served on the party affected who is expected to file a reply.
Consequences of divorce
In a petition for dissolution of marriage the aggrieved party may claim for damages from any person on having committed adultery with his wife. Section 21-22, Uganda Association of women Lawyers.
Pritchard
He Gypt 1954 KLR 24
Procedure for damage recovery, section 21(3) the court may direct that the damages be levied from movable and immovable property of the person ordered to pay for the benefit of the children and maintenance of the wife.
CUSTODY
In a suit for dissolution of marriage, court may, or after a decree absolute has been pronounced make such orders as to custody and maintenance of young children.
In Teopista Kayongo v. Richards, it was stated that custody of children of tender years should stay with the mother unless she is not fit and proper.
In determining who should have custody of children, the welfare of minors is the paramount consideration. The court has to consider; who is the fit and proper person to take care of the interests of the minors.
P. Nakagwa
Kalisa
The term welfare though not defined ordinarily means in relation to the children all circumstances affecting the well being and upbringing of a child have to be taken into account and the court has to do what a wise parent acting for the interest of a child ought to do.
Nakagwa
The power to grant custody to any parent is discretionary and the court will take into account a number of relevant factors including the financial position, age and sex of the minor, education of the minor, health and proper upbringing.
Nyakairu
Where custody is granted to one of the parties, the other party is entitled to the right of access to the children in the same way children are entitled to visit you as long as you don’t interfere unduly with their well being and only where necessary will children be free to visit.
MAINTENANCE
Where court has granted custody to any of the spouses, it may order the other spouse to provide for maintenance of the children. Nyakairu
The court can vary the order of maintenance on the change of economy. Section 29 “In suits for dissolution of marriage, or for nullity of marriage or for judicial separation, the court may at any stage of the proceedings, or after a decree absolute has been pronounced, make such order as it thinks fit, and may from time to time vary or discharge the orders, with respect to the custody, maintenance and education of the minor children of the marriage, or for placing them under the protection of the court.”
Alimony
According to section 23 of the divorce act, a wife whether or not she has obtained a protective order may apply to court pending suit and court may make such order as it may deem it fit and just except that the order should not exceed 1/5 of the average net income for three years next preceding the date of the order, i.e. alimony pendente lite.
Section 24 provides for permanent alimony where a decree absolute has been made, the court has to take into account the ability of the husband and the conduct of the parties. Court may direct either the alimony to be paid in lump sum, annually weekly or monthly during the life of the wife and depending on the ability.
The order of alimony may be discharged where there is a just cause i.e. inability of the husband to make continued payment, improved position of the wife. Once the court makes the order absolute and there is no appeal or the appeal has been dismissed or the time limit for the appeal has expired the parties may marry again as if the prior marriage had been dissolved by death. Section 40 provides that “no clergyman in Holy Orders of the Church of Uganda shall be compelled to solemnise the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnising, or refusing to solemnise, such marriage.”
Process of final dissolution of marriage
Once the court allows the petition, it makes a decree nisi and the decree cannot be made absolute until the expiration of 6 months from declaration of that decree or longer periods as the Chief Justice may prescribe by rules.
In Neogy v. Neogy [1967] EA 664, it was held that there is no power in Uganda for court to bridge the 6 months period provided in decree nisi and decree absolute.
Morris v. Morris
The 6 month period is for cooling after which either party can show why the decree should not be made absolute. Section 37
Where the petitioner fails to move the court within a reasonable time for the decree to be made absolute the court may dismiss the petition. Section 37(5)
Distribution of property
Section 26 provides for the settlement of the wife’s property for the benefit of the husband and the children where the divorce is on the account of her adultery. Section 27gives the court the power to vary settlements
Imelda Mwewulize
The general principle of the law is that, where a spouse is able to prove financial or monetary contribution to the property acquired by the other spouse or both of them jointly, the property is distributed in respective contribution.
Edita Nakiyingi
National Provincial Bank v. Ainsworth
However that provision has been subject of judicial consideration in the case of Julius Rwabinumi v. Hope Bahimbisomwe, the court of appeal stated that Article 31(1) forms the constitutional basis of the rights of partners in any legal marriage in Uganda. It further stated that property acquired in the anticipation of marriage and during marriage constitute matrimonial property and must be shared equally regardless of the contribution.
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