Property distribution after divorce: How to get a fair share

Divorce is a sad business without the added pressure of property division. It is very rare for couples to share property and end a marriage amicably. Where there is property, whether children are involved or not, expect intense negotiations and bitter arguments as former lovers fight to get a share of what they think they deserve. But while some couples decide to settle things out of court others seek the intervention of the law. Legal experts, therefore, urge couples to take the necessary steps needed to protect themselves whether they believe their marriages will last forever or not.

For example, Peace Uhiriwe, after 16 years of marriage sought a divorce, citing her husband’s infidelity. Uhiriwe and Paul Kagwa got married in 2005 and moved into what she considered their matrimonial home in Lubowa housing estate in 2006. 

Uhiriwe claims that at the time, the house was an incomplete structure, which she and her husband went ahead to finish. She claims she made monetary contributions to this process for which she expected to be compensated.  However, at the end of the court case, Uhiriwe was awarded a set of curtains worth Shs2.8m and one cow.

Brief of the case

Uhiriwe filed for divorce in 2017 after having left her husband in 2013, protesting his unfaithfulness.  The couple had not had any children. In her petition to the Family Division of the High Court, Uhiriwe requested that on top of annulling the marriage, she wanted court to declare the listed properties as matrimonial property to which she would be entitled as a spouse.

A house in Lubowa Housing Estates, a building on Bukoto Street, Kamwokya, a house on Nakiwogo Road, Entebbe, a house on Sesse Walk, Entebbe, a house in Bugiri, Kisubi, in Mpigi District, and the cows on the farm in the Ntungamo.

What is matrimonial property?

In an earlier case, Justice Solome Balungi Bossa, notes; “Matrimonial property is understood differently by different people. There is always property which the couple choose to call home. There may be property which may be acquired separately by each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse should be entitled is that property which the parties choose to call home and which they jointly contribute…”

This description leaves out any other properties that were acquired separately by any of the parties before or during the marriage.

So why did the judge not award Uhiriwe half of the Lubowa property where the couple lived and called home? Because the evidence provided showed that the house was registered under FRK Communications Ltd (a company owned by Kagwa’s daughters and for which he is company secretary).

Neither Kagwa nor Uhiriwe were on the property title and for that matter, the judge determined that the same can’t be called a matrimonial property because none of them owned it. And if Kagwa had wanted to co-own the property with his wife, he would have taken the steps to do so during their marriage, but he did not, as the judge noted:

 “In my view, the Constitution of Uganda (1995), while recognising the right to equality of men and women in marriage and at 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 of Uganda (1995). 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 wanted to take away the right of married persons to own separate property in their individual names, they would have explicitly said so.

I am aware that any married person, in pursuance to the marriage vows he or she has made in church or in any other marriage ceremony, is at liberty to execute a legal instrument and to transfer into joint or sole ownership land and/or property he or she held prior to the marriage in favour of his or her spouse, either at the time of contracting the marriage or any time after the marriage has been celebrated.

Similarly, a spouse can also transfer into joint or sole ownership property he or she individually acquired during marriage. In such a case, the spouse, in whose favour the transfer of land has been made, would clearly be entitled to register the land in his or her names or in the couple’s joint names as the transfer instrument may state…”

It was therefore, determined that the house in Lubowa Housing Estate where the couple lived and called home was also not matrimonial property and was not to be considered in the settlement.  All the other properties, it was determined, were acquired before the 2006 marriage and would also not be subject to distribution in the divorce settlement, either.

What amounts to contribution?

One type of asset that usually receives less attention in divorce proceedings is emotional support and all the other intangible ways couples support each other. Sometimes even the tangible contributions are difficult to prove in a court of law.

For example, Uhirwe claims, her family forfeited her dowry as a contribution to their financial well-being. She also claims to have supervised the completion of the home and even bought some construction materials. Unfortunately, her supportive matrimonial contributions, could not be compensated in court.

According to an older but related ruling from the year 1997 that this court decision cited, what amounts to contribution to earn a spouse a share in the property may be direct and monetary or indirect and non-monetary.

However, in this case, all the properties were registered before the marriage, making it hard for Uhiriwe to claim contribution. The judge also disputed Uhiriwe’s testimony that she purchased tiles and paint for the Lubowa house and also that she supervised the builders because she was unable to bring satisfactory evidence to the claims.

 “I would have also expected her to at least adduce the evidence of some of the workers who completed the construction of the house to support her claim which was however not done,” observed the judge.

Document everything

Eunice Musiime, the Executive Director of Akina Mama wa Africa, a feminist Pan-African leadership development organisation, says the law in Uganda still favours men for the most part.

 “The law operates in an environment where patriarchy persists and that is why we also see that judgments are being made that are not very far from the pre-existing social norms,” she says.

Musiime says in many cases, contributions in marriage are largely judged on financial terms.

“When you look at this case, it is easy to see that having previously gone through a divorce case, he was wiser this time around. He had probably learnt lessons from the previous experience and knew how to protect himself.  So for example, the matrimonial home where the couple lived was owned by a company where the man was not even a director. The company is owned by his daughters and he is a mere company secretary,” she says.

While he was prepared for any eventuality, the woman was not. She could not even produce receipts of the tiles she said she bought for their matrimonial home. 

“Many women, even educated ones, do not acclimatise themselves with the law and they end up entering these disputes unprepared. Keep all evidence of your contributions if you want to keep your interests intact. Remember the law leans towards the patriarchy,” Musiime says.

Make sure you document your financial resources, and those of your spouse, from before your marriage. Also, ensure every contribution is acknowledged and documented. For instance, at some point in the marriage, Uhiriwe started asking her husband to include her name on the title, probably based on the contributions she had made. Kagwa in his submission named this instance as one of the major reasons the marriage broke down.

“Whereas in many such cases, the woman is awarded properties for non-monetary contributions because she stayed home looking after the children, and therefore, was unable to make money of her own, Uhiriwe, never had children and she was gainfully employed during the marriage,” says Yovino Okwir, a Kampala-based lawyer. 

Lessons

The property ownership lessons we can learn from that judgement are:

1. Once property is purchased before marriage, it is not matrimonial property and can’t be shared between the couple upon divorce / dissolution of the marriage.

2. For property purchased after marriage but is not registered in both the couple’s names, the spouse claiming a share of that property must prove to the court that they contributed towards the building or acquisition of that property. In this case, the petitioner could only adduce evidence of buying curtains and she was refunded the purchase price for the curtains (Shs2.8m)

3. The judgment highlights the significance of registering properties in both spouse’s names to avoid disputes upon divorce.

4. The judgment stresses the importance of clear agreements and documentation in property ownership during marriage. In the instant case, the matrimonial home was owned by a company called FRK Ltd owned by the 1st respondent’s daughters and was later transferred to Faith Kagwa, the first respondent’s daughter.

5. Every individual has the right to own property individually in marriage as enshrined in Article 26 (1) of the Constitution of Uganda which provides that every person has a right to own property individually or in association with others.

6. Upon entry into marriage, they may choose to have them transferred to their spouse’s name solely or jointly in which case it becomes joint property.