An analysis of the efficacy of the Supreme Court decision of the case of Julius Rwabinumi V. Hope Bahimbisomwe Supreme Court Constitutional Appeal No. 10 of 2009, in resolving the matrimonial property issues at the dissolution of marriages in Uganda.

The question of matrimonial property has not taken a specific dimension, in the development of family law. And this research seeks to analyse how this question has been demystified in different jurisdictions over the ages. I will look at Uganda, as my case study. And more specifically, analysing the locus clasicus of Julius Rwabinumi V. Hope Bahimbisomwe Supreme Court Constitutional Appeal No. 10 of 2009, focusing on its recent developments in analysing the question of matrimonial property in Uganda

In England, married women could not own property for most and purposes until the passing of the Married Women’s Property Act in 1882. At common Law it would be presumed that all property in a matrimonial home belonged to the husband , and this was reflected in the case of LAILAI V. THE QUEEN 1955 23 EACA 609. This explains the existence of the conflicts in marriage, the battle of who owns or who should own what, before, during and after the dissolution of marriage. This was also reflected in the dicta of Lord Denning in HINE V. HINE [1962] 3 All E.R, and also in the case of GISSING V. GISSING [1970] ALL ER 780 where court held that it was not possible to, draw an inference that there was any common intention that the wife should have any beneficial interest in the house. This confusion is also reflected in our laws in Uganda. For example, in cases of divorce, Sections 26, 27, 28, of the Divorce Act CAP 249 favoured husbands, in regards to property, and also basing on the traditional-customary historical question , in regards to the women Succession of property in Uganda, which was also backed up by the Succession Act , however historical question was settled in the case of Law Advocacy for Women in Uganda v Attorney General - Constitutional Petitions Nos. 13 /05 /& 05 /06 [2007] UGCC 1 (5 April 2007), where Court held that that women to have a right to inherit property.[1] The same position was supported in the case of BEST KEMIGISA V. MABLE KOMUNTALE. Over time, the position in England (Common Law position) has changed. For instance, in the case of PETTIT V. PETTIT [1969] 2 ALL E.R 385, Court held that a husband was not entitled to an interest in his wife’s property.[2]

The respondent subsequently petitioned for divorce on 14th Feb 2005 under the Divorce Cause No. 4 of 2005, on grounds of the appellant’s adultery and cruelty which had led to her marriage to break down. She prayed for judgement against the appellant for the following orders. A divorce Order; Maintenance Order for the child; a share of the property to which she contributed; a return of all gifts and presents given during the giveaway ceremony; cost of the petition; and any other remedy as court may think fit. However, the appellant also cross petitioned for divorce on grounds of the respondent’s adultery, witchcraft and irretrievable breakdown of marriage. Dissatisfied with the judgement of the High Court, the appellant lodged Civil Appeal No. 30 of 2007 in the Court of Appeal, which dismissed his appeal, with Costs to the respondent. Being dissatisfied with the Court of Appeal’s decision he appealed to the Supreme Court, the Supreme Court challenged the Court of Appeal decisions, both in fact and in law.

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Issues (before the Supreme Court)

1. Whether all the property solely acquired by the individual appellant became jointly owned property upon his marriage to the respondent, and should be equally shared.

2 .Whether the learned justices of the Court of Appeal erred in law in their interpretation of Article 31by applying it to equality in the distribution of the property independently owned by the appellant.

Holding of the Supreme Court

Court held that property individually held by the spouses prior to the marriage, would not be jointly owned by both parties, just by the mere church ceremony vows exchanged upon their wedding. Hence the property should be equally shared, on the basis of church marriage vows. Court also stated that Article 31 of the Constitution, 1995 had been wrongly interpreted in the Court of Appeal.

With reference to the Supreme Court decision in Julius Rwabinumi V. Hope Bahimbisomwe, and with reference to other relevant authorities and decided cases, the guidelines considered by the Court on how such property should be divided. Court Considers;

Whether the matrimony property of the Couple had been jointly contributed to; Supreme Court discussed the principle of both parties jointly contributing to the matrimonial property. Court established that as a matter of right and in the normal course of things a spouse to a marriage in case of breakup of that marriage is entitled share equally in that property which both spouses have contributed to and have chosen to refer to as their own. It is the Court that determines the extent of share the spouse is entitled to, depending on the context of individual contribution of both as husband and wife. That the term contribution of both the spouse should be given a wide meaning so as to capture and reflect the real customary values, practices and economic dynamics of a typical Ugandan family. Hence the position of the law on matrimonial property as was established in Julius Rwabinumi V. Hope Bahimbisomwe[6] is to the effect that where both spouses in a marriage put their financial and or resources together acquire property and register or otherwise own the same in their joint proportions then such property is family property and is owned by spouses in equal shares. This principle was also elaborated in the earlier case of Edith Nakiyingi V. Melekizedeki 1978 HCB 107[7] where Court held that the husband (Melekizedeki) had a duty to provide the wife with a home and if he wanted to evict her, he must find alternative accommodation for her since it was the husband who had terminated marriage.[8]

Court will also consider property owned by the parties before marriage, that is to say before entering into the relationship. Nigel Lowe in Bromley’s Family Law[9] states that presumptively, marriage, civil partnership, engagement or cohabitation will not affect the ownership of property vested in either of the partners at the time. This will also be true of property which is used by them jointly in the family home; for example, furniture, in the absence of an express gift of a joint interest in law or in equity. In Uganda, the same principle is reflected in the Constitution of the Republic of Uganda, 1995 (as Amended). That is to say, Article 26 protects one from deprivation of property, hence establishing that one has a right to own property, whether individually, or with others. Article 27 of the same Constitution also established a right to privacy of person, home, and other property, respectively. And also, Article 31, backed up with Article 21, provide for equality of all people before the law, even in marriage. But notwithstanding that still a couple can make an agreement to co-own the, property that was individually owned before marriage.

Gifts between engaged Couples, are also put into consideration, as a guideline in dividing matrimonial property. Court considered the general rule (at common law), that gifts made by one party to an engagement to the other in the contemplation of marriage would not be withdrawn, except where the receiver of the gift had breached her Contract. For example, where a man gave a woman an engagement ring, up on the promise of marring him, and the woman breached a contract, the man was at liberty to have back his engagement ring as was decided in the case of COHEN V. SELLAR [1926] 1 KB 536. However, this law is not so much practiced or effected in Uganda especially, after the case of MIFUMI and 12 Ors V. Attorney General Constitutional Petition No. 12 of 2007. Where Court held that though payment of the bride price should be done at one’s own will, hence making it unlawful to demand for bride price as a condition for marriage, as it contravenes Article 31[10] asking back the same bride price or gifts upon dissolution of marriage was declared null and void. Hence gifts are taken to be of absolute ownership of the receiver. And they should be distinguished from bride price.[11]

Wedding gifts, here the case is completely different, though related to the above; that is to say, whether a gift belongs to one spouse alone, or both is a question of the donor’s intention. The general rule is that the wedding presents in the absence of any evidence to the contrary, from a friend of either spouse belongs to that spouse alone. This was discussed .in the case of SAMSON V. SAMSON [1960] 1 All ER 653, CA a married couple disagreed as to ownership of their wedding gifts including some gifts of cash and sought an order under S17 of 1882 Act. The court of appeal rejected the wife’s argument that wedding gifts are jointly owned and said that the determining factor is the donor’s intention. The House of Lords overruled this judgment and held that property which is given at a time of wedding to ones spouses or other may become joint property .In the case in question, the appellant denied the respondent any share in the gifts, and maintained that no gifts had been given. Court held the gifts were to be shared in equal terms.

Court also considers the issue of the Bank Account; where the spouses pull their incomes and place them in a common fund. In the case of Jones V Maynard (1951) Ch 572 court held that regardless of their differences in contribution and withdraws, they acquire joint interests in the same account. In this case, both parties operated a J.H higher business and opened a joint bank accounts of the business despite the appellant stating that the respondent had taken all the money in the bank account and had also taken three quarters of all the equipment the respondent did not controvert this evidence. Court held that on the evidence adduced the business was jointly owned by both parties as a family enterprise.

In conclusion, the issue of Matrimonial property in Uganda, is still one of the most contentious issues in marriage, due to the rapid developing trends in the laws governing Marriage and divorce, that are being coaxed to accommodate in cohabitation as one of the major basis for the dilemma seen in the division of the matrimonial property, that even the Marriage and Divorce Bill No. 19 of 2009 is still not in effect, due to the existing loopholes. No wonder Bbosa J Muwanga v Kintu High Court Divorce Appeal No.135 of 1997, rightly pointed out the challenges that Courts will continue to face in determining what constitutes matrimonial property in Uganda[12].

However, the Supreme Court of Uganda in Julius Rwabinumi v Hope Bahimbisomwe S.C.C.A NO.10 of 2009 provides the current position of the law in regards to the division of matrimonial property, hence the guidelines established in this court provide remedy to the issues surrounding the [division of Matrimonial property in Uganda.Bottom of Form

BIBLIOGRAPHY

Statutes

v The Constitution of the Republic of Uganda 1995, as Amended
v The Marriage Act CAP 251
v The Marriage and Divorce Bill
v The Divorce Act CAP 249
v The Succession Act
v The Land Act CAP 227, as Amended
1. Case Law
1. Text Books
v Nigel L. And Douglas, Bromley’s Family Law. 2007, United States, Oxford University Press.
v Katarina J. And Kanjama C. Family Law Digest on Matrimonial Property
v Jennifer Okumu Wengi, Women’s Law and Grassroots Justice in Uganda. 2011; Kampala, Law Africa.

[1] Court stated that Section 2 (n) (i) and (ii), 14,15, 26, 27, 29, 43, 44 of the Succession Act and Rules 1, 7, 8, and 9 of the Second Schedule of the same Act are inconsistent with and contravene Articles 21 (1) (2) (3) 31, 33(6)of the Constitution and they are null and void. [2] This because his contribution was deemed to be any reasonable man’s expected performance as a husband in a home. There was nothing extra ordinary that he had done to earn him an interest on his wife’s property upon divorce.

[3] Clause 115 is to the effect that Matrimonial property shall include; the matrimonial home (as defined under Section 3 of the Bill), household property in the matrimonial home; any other property either immovable or movable acquired before or during the subsistence of marriage, deemed to be matrimonial property by express agreement, property which was separate property but which a spouse has made a contribution towards, except where the property relates to the sale of family land, and seed money provided by a spouse for the establishment of a business. [4][4] Counsel for the appellant (Mr. Masembe Kanyerezi of MAKKS Advocates.) [5] Constitutional Appeal No. 10 of 2009, in the Supreme Court of Uganda.
[6] Constitutional Appeal No. 10 of 2009, in the Supreme Court of Uganda. [7] where Court held that the husband(Melekizedeki) had a duty to provide the wife with a home and if he wanted to evict her, he must find alternative accommodation for her since the husband who had terminated marriage. In this case, the wife had contributed to the building and the maintenance of the home for 12 years. The husband on divorce proceedings sought to evict her from the home.
[8] However, in the case above case (Edith Nakiyingi V. Melekizedeki ) Court explained that merely spending money on another man’s property does not generally give one a proprietary interest therein however the doctrine of equitable estoppels subsists if the owner encourages the other spouse to expend on the property. However, as long as the spouse made substantive improvements on the property, the property is presumed to be owned together hence the house in the Nakiyingi case was jointly owned by the spouses.
[9] Tenth Edition, Oxford University Press, 2007, at page 132 [10] Of the Constitution of the Republic of Uganda, 1995,as Amended. [11] This is because much as a bride price can not be asked back upon dissolution of marriage, mere gifts can be demanded back(withdrawn), especially f they were given on a condition of fulfilment of the promise, for example, a promise to marry.
[12] Where she observed that “Matrimonial property is understood differently by different people. There is always property which the couple chose 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 chose to call home and which they jointly contribute to”