Addressing the complex question of property in marriage

Edid Kembabazi* stared at a bleak future. Her marriage was on the verge of collapsing. Her husband had kicked her out of her matrimonial home and brought in another woman. With her three children Kembabazi had nowhere to go.

But she refused to die in silence. While processing her divorce, the Uganda Network on Law Ethics and HIV/AIDS (Uganet) took on her case. A mediator appointed by court ensured the disagreeing parties settled the property issue before divorce.

Finally, the want-away husband, who had exclusive ownership of the other property they had acquired during marriage, agreed to take care of the children and surrender his interests in the matrimonial home.

Court sessions

Kembabazi thought the storm was over. But she was wrong as she later realised her husband had already sold part of their matrimonial property.

“We had to return to court to reclaim the sold portion,” says Immaculate Owomugisha, head of advocacy and strategic litigation, Uganet. “It wasn’t easy to convince the occupant to surrender.”

The case took four years, according to Owomugisha, who says many complainants get frustrated, drained and eventually give up.

Kembabazi was lucky that she was legally married and had sired children with her estranged husband. But, Owomugisha says, in case a relationship ends, it takes a much empowered widow, who had sired children with her deceased husband to win a property battle against the deceased’s family.

While those in cohabiting relationships are not even considered by the existing laws—be it in Christianity, Islam or the state.

Rights and challenges

Citing Article 21 of the Constitution of Uganda, which notes that all persons are equal before and under the law, Salim Makeera, of Makeera And Company Advocates, says women in a relationship, whether legally married or cohabiting, are entitled to ownership of property.

Makeera cites the Succession Act that allows a legally married woman to stay in what is called matrimonial property until she voluntarily leaves. However, in exceptional instances, court might decide to sell it off to cater for the children.

Meanwhile, the cohabiting woman has to prove her contribution to the property, though sometimes women’s contribution is more moral than financial.

Muslims under the Kadhi courts were given the mandate to use the Sharia—the Islamic supreme law—over guardianship, divorce and inheritance.

In July last year, the Uganda Muslim Supreme Council asked Parliament to exempt Muslims from the Succession Amendment Bill 2018, which seeks to amend the Succession Act, 1906 to match the 1995 Constitution and ensure gender equality in matters of inheritance.

The UMSC representatives explained that the bill does not apply to Muslims because it contradicts the divine teachings of the Quran.

Succession Act

The Succession Act gives 75 per cent of the deceased’s estate to children in case there’s no will, and 15 per cent to the widow.

But the Bill gives 50 per cent to the surviving spouse and 41 percent to the children.

But the Sharia allocates one eighth of the property to the widow who has children with the deceased husband, or one quarter of the estate if she has no children of the deceased.

Meanwhile, if a woman dies, her husband is entitled to a quarter of her wealth if they had children or half in case of no children.

To avoid confusion, Radhiyyah Namakula Lukwiya, secretary of women affairs at UMSC, advises Muslims to state clearly in their wills that ‘once I die, my property shall be shared according to the Sharia.’

In case a couple seeks divorce, they must undergo three months of separation but under the same roof and enjoying all their rights and fulfilling all her duties, except sex. A pregnant woman is not divorced until she delivers.

Reconciliation

“The essence is to make them reconsider divorce and reconcile,” Namakula says. “But if divorce is inevitable, the man  should provide for the children wherever they live.

If the man initiated the divorce, he must give capital (entandikwa) to the woman, which is determined by Kadhi courts, on equitable terms, according to the man’s financial status. But if the woman initiated the divorce, she is not entitled to compensation, though she might get something out of sympathy.

Namakula reiterates that Muslims do not need a new legislation regarding property inheritance.

But even with the existing laws, Makeera, the lawyer, notes that many women are deprived of their rights to marital property.

Owomugisha, of Uganet, says majority of the women are ignorant about their rights to marital property and when their marriages end—due to the husband’s death or divorce, many walk away into suffering without claiming their entitlement.

Ignorance

Makeera adds that while ignorance is a big problem, inadequate enforcement of the law is another obstacle to justice.

“If the widow’s relatives are not cooperative, authorities like police, local government and the judiciary should step in to resolve property issues,” he says.

“But the judiciary does not reach the lowest levels of society. Say, if a Magistrate Grade Three is at the sub-county headquarters, some sub-counties are very big, so the procedure of accessing the judicial services becomes a problem.”

The other challenge, he notes, is phobia as people think justice is impossible without money.

Namakula of UMSC also cites the casual attitude of moslems towards marriage as many fail to register their marriages with the Uganda Muslim Supreme Council and the Uganda Registration Services Bureau.

That aside, many women fear demanding their property rights in fear of being judged by society which views property as a preserve of the man, Owomugisha says.

So, experts concur, government and civil society must continue sensitising the masses on such rights.

Build strong families

Henry Mwanja, head Fathers Union Gayaza Archdeaconry, says in resolving inheritance and property issues, the Anglican Church considers the Canon Law and the Common Law.

“The church considers the deceased husband’s will but if he left no will, church considers the law of the state, currently, the Succession Act].”

Mwanja adds that church assumes that all wealth acquired by the [legally] married couple is for the husband, wife and children. “But we encourage couples to make a will to avoid confusion.”

However, he adds, neither the woman nor the man should know what is in the other’s will, until one is dead.

Legal gymnastics

Solomon Male, a Pentecostal pastor and head of Arising For Christ ministries, says the marital property question has been complicated by the legal society.

“Without these legal gymnastics, our grandfathers married several women, sired many children but when they died their widows stayed in their matrimonial homes,” Male says.

“It’s unfair and cruel to pressurise only men to declare their wealth to their wives when many women acquire wealth and contribute nothing financially to the home,” he says.

“Ask the prominent wealthy women how much of their wealth did they bequeath to their husbands.”

Male says this undue pressure is what tempts women to gang up with their children to evict men from their homes or kill them.

In worst cases, he says, the same children also turn against their mother, and kill her.

Depression

“Many men battle depression, others die miserably because they fear being ridiculed as cowards. But feminists don’t want to talk about that.”

Male suggests: “Why don’t we promote unity and trust among couples and quit the obsession of ‘what if the man dies?’.

“Because if a couple has been in a long, peaceful marriage, when a man dies it’s hard for relatives to dislodge the widow from her home. So if we build strong families, the inheritance puzzle will be the simplest to solve.”

Materialistic interests.

Citing the story of Ruth, a young widow who was taken over by another man Boaz, Male says the Bible strongly advocates for taking care of widows. But, he says, many avoid that gospel because it negates their materialistic interests.

Namakula also advises Muslim couples to make as many families aware of their marriage such that even if one witness dies, or gets compromised, afterwards, the others can attest to marriage.”

Transparency

Makeera, the lawyer, advises spouses to be open to each other about property to avoid friction in case one dies.

“Some women are good estate managers but even if yours is not, it is better you let her know about any property you acquire instead of it slipping into the hands of strangers when you die. And such cases are many,” he says. “The same applies to women.”

Mwanja, of the Fathers’ Union, concurs that the lack of transparency kills trust and breeds disagreements.

Prioritise communication

Meanwhile, Namakula advises Muslim families to establish family companies where members have shares to mitigate inheritance struggle.

But when is it appropriate for a couple to discuss this intricate property question?

Owomugisha, of Uganet, says communication should be a priority from the onset.

“Phrases like ‘my house’, ‘my car’ make the other party unentitled, insecure and raise conflict,” she says.

Use real names

Owomugisha also advises women to use their real names when signing against family property, instead of signing as ‘Mrs So and So’ because another woman might claim to be the signatory. The children’s names are equally important.