Thought and Ideas
Marriage Bill: ‘We are tackling reality’
Posted Sunday, March 17 2013 at 02:00
Proposed change. For the last two weeks Parliament has been haggling over the Marriage and Divorce Bill which seeks to reform and consolidate all the laws relating to the same. The proposed law has been on the agenda for the last 47 years. However, the new proposals in the Bill that seeks to legalise cohabitation and sharing of property, provides for recognised types of marriages, marital rights and duties, and divorce have stalled the Bill. Sunday Monitor’s Mercy Nalugo interviewed Ms Betty Amongi, the Uganda Women Parliamentary Association (UWOPA) chairperson, about the entire Bill.
1. For the last two weeks there has been a lot of quibbling about the Marriage and Divorce Bill. What is this Bill all about?
It is a proposed law meant to reform and consolidate all the laws relating to marriage, separation and divorce. It provides for recognised types of marriages in Uganda, marital rights, marital duties, grounds for breakdown of marriage and rights of parties on the dissolution of marriages. The Bill is a product of a comprehensive study carried out by the Uganda Law Reform Commission, including other studies like the report and commission of inquiry into the marriage, divorce and status of women (The Kalema Report of 1965). It also considered reports from the ministry of women in development, culture and youth of 1980 and 1993 respectively.
The Bill is reforming the current existing laws on marriage and divorce enacted as far back as 1904 and some of the provisions in the current Divorce Act and the Marriage Act which were nullified by the Constitutional Court ruling petition number 2 of 2003 in which all constitutional court judges unanimously agreed and ordered a declaration that Section 4(1) of the current Divorce Act (Cap 249) contravenes and is inconsistent with articles 21(1) and 2 and 31(1) and 6 of the 1995 Constitution which are necessary reforms in the current law.
2. What has prompted the law and why now?
Like I have indicated, the Constitutional Court ruled that the provisions are inconsistent with the current law. It is only justifiable that we reform and make a law that is consistent with the 1995 Constitution. Also currently there are other constitutional provisions in relation to the principle of consent to marriage which is by two parties. The law we are operating under was passed in 1904.The Constitution talks about laws and cultures which undermine the status of women. When you look at the current ruling, judges were very clear on the issue of divorce - that the laws were made by the Europeans.
The laws re-enforce superiority of men and inequality which contravene the Constitution……The Bill is in line with the emerging challenges in the country. People think it’s a new law but we are just reforming it. The current law is incorporating the Ugandan aspect and colonialism. We have moved out of colonial tendencies, hence we need laws made for Ugandans. The law will help us move the society forward.
3. There are a number of controversial clauses that have been cited in the Bill, for example the clause on cohabitation, sharing of property, denial of conjugal rights and the grounds for divorce. What are you doing to address them?
In this context we have agreed that the issue of cohabitation be dropped. We have now began on the research for a common law on when cohabitation can be legalised. In Zambia, their law gives conditions under which cohabiters are presumed married, for example when one shows intent to marry and cannot afford, they are recognised by the law.
Also those who have lived together for five years are presumed to be married. We are considering laws from the US, UK and South Africa so that we come up with a comprehensive law on cohabitation since majority Ugandans are cohabiting. On property sharing, most Ugandans are not aware of what is pertaining in respect to property sharing. The question of how property will be shared will be determined by the judges based on one’s contribution. The Bill recognises separate property which is not subjected to division which include property acquired before marriage. Ancestral property and family land cannot be shared.
Matrimonial property includes matrimonial home, household property and any other property acquired jointly or where a spouse has made a contribution and it’s shared according to evidence presented. Clause 117 and 118 talks about property agreement regarding property sharing although some men and church are opposed to this, saying it’s not tenable to subject marriage to be founded on suspicion but we shall look at it.
The clause on the breakdown of marriage; in the old law the grounds were flimsy and would make it more easier to divorce but in the new Bill you must prove why you want to walk away. We are also introducing grounds for divorce, which include homosexuality, incest, bestiality and sodomy. We are trying to reinforce the moral preaching of the church.
4. Church says it was never consulted. How can you deliberate on a Bill without engaging key stakeholders?
The Parliamentary committee on Legal and Parliamentary Affairs, during public hearing consulted Uganda Joint Christian Council (UJCC) .UWOPA, during their workshops, consulted UJCC and Uganda Women’s Network. We have had several consultations with the church. We dropped the clause on cohabitation due to the compromise we had with the religious leaders. We cannot be held accountable to their internal mechanism. The church is vehemently opposed to the clause that legislates for divorce but as Parliament we do not make laws based on one side of society. We have identified divorce exists and we recognise that very many church leaders have divorced using the old Act.
They have been party to the wedding couples who are re-marrying. This is reality. I once perused divorce files at the High Court and of the 30 files that I saw, 25 were for married couples. I want church to recognise that much as they argue to the contrary, their believers are undergoing divorce. We want to accommodate the interests of church believers. They should do more of moral preaching and strengthen reconciliation.
5. The male MPs are not comfortable with the Bill and think women are plotting to steal their property. They also say women want to misuse the law to deny them conjugal rights. Have you brought your male colleagues on board?
We have agreed to have more dialogue to appreciate the Bill. The law protects separate property and allows spouses to enter into a contract of how sharing of property will be done. We want to narrow down issues they want. We shall be accommodative on issues of conjugal rights.
6. Ugandans are concerned that the entire Marriage and Divorce Bill legislates for women and men and completely leaves out children. What is their fate in all this?
Children are not featuring anywhere because currently we have a comprehensive law called the Children’s Act. Any judge will use the Children’s Act to address the interests of children in respect to their property. The rights of children take priority and we are bringing an amendment to indicate that priority shall be given as per the Children’s Act.
7. It is believed that women MPs and civil society who are pushing for the Marriage and Divorce Bill have failed in their marriages and want to create disharmony in society or even grab men’s property. Is that so?
This is not true because it is a government Bill brought out of the concern that real challenges exist. Those who divorce who are not MPs are many. Divorce is not only in Uganda but everywhere. Uganda Law Reform Commission also indicated to us that 67pe rcent of women are cohabiting and we should address this reality.
Highlights of bill
PresidentHighlights in the proposed Marriage and Divorce Bill
Clause 10: Empowers the minister to grant special licence to marry.
Clause 14: Seeks to eradicate marriage gifts. Makes it an offence to demand the return of those gifts and a person who contravenes this law faces a one-year jail sentence.
Clause 114: A spouse can deny the other sex on grounds of poor health, surgery, childbirth or fear of injury or harm, including fear of disease. The clause makes it an offence for the offenders who face imprisonment not exceeding five years.
Section 140: A spouse shall not petition for divorce before the expiry of two years from the date of marriage and a spouse must prove that he or she is suffering exceptional hardship in marriage.
Clause 147: Empowers courts of law to decide whether or not a marriage has irretrievably broken down. Such grounds are adultery, sexual perversion on the part of the respondent, cruelty whether mental or physical, desertion of the petitioner for a continuous period of at least two years, incest, change of religion, among others.
Clause 115 and 116: The property acquired before marriage is not shared upon dissolution of marriage unless it becomes matrimonial property.
Section 117: Recognises cohabitation in relation to the sharing of property. Also recognises polygamous marriages and legislates on family land.