editor@juralmedia.
Kampala, 06th September 2023 – In the heart of Uganda, a land steeped in tradition, the notion of divorce has always been a sensitive subject. In a society where marriage is considered sacred and divorce frowned upon, many individuals, particularly women, have endured unhappy and even abusive unions in silence, dreading the prospect of divorce. However, with the dawn of the digital age and a new generation of married couples, the question of whether divorce can be achieved through mutual consent is gaining prominence.
The legal landscape governing divorce in Uganda is primarily guided by the Divorce Act Chapter 249, which was enacted back in 1904, long before the country gained its independence. This legislation has a strong religious underpinning, viewing marriage as a divine institution to be protected at all costs. To obtain a divorce under this act, one must petition the court and provide evidence supporting grounds for divorce, such as adultery, cruelty, or desertion. At first glance, it appears that there is no provision for divorce by mutual consent.
The current stance on divorce by consent in Uganda seems to be a matter of judicial discretion. Some judges adhere strictly to the traditional view that marriage should be upheld and divorce discouraged, even when both parties agree to the dissolution. In their eyes, adherence to the statutory requirements for divorce is paramount. Hon. Justice Steven Mubiru, for instance, belongs to the camp that sees marriage as serving vital societal, legal, economic, and institutional functions. In his judgments, he argues that while the respondent’s non-opposition to divorce is a factor, it alone is insufficient to grant a divorce.
Even the Court of Appeal emphasizes the need for proof of traditional grounds for divorce before considering marital dissolution. Consent alone, or even the notion of an irretrievable breakdown of marriage, is not sufficient.
In this context, it’s worth revisiting the 1995 constitution of Uganda. Article 31 of the constitution recognizes the right of men and women to marry and found a family, emphasizing that marriage should be entered into with free consent. If marriage can begin by free will and consent, shouldn’t it also be dissolvable by the same principles?
While some legal scholars have staunchly adhered to a strict interpretation of the law, rejecting the possibility of divorce without traditional grounds, others have shown a willingness to embrace the principle of dissolution by mutual consent. Hon. Justice Billy Kainamura, for instance, has in one of his judgments backed the use of consent-based divorce to avoid lengthy litigation, provided that the court endorses such consents to prevent collusion, condonation, or connivance. There are glimpses of more flexible perspectives in a few other members of the bench.
A Marriage Bill proposal, which sought to comprehensively regulate marriages in Uganda, including provisions related to grounds for divorce such as the concept of an irretrievable breakdown of marriage, has encountered substantial controversy and has come to a standstill in parliament.
Critics argue that the current law is unconstitutional as it denies individuals the opportunity to dissolve a contract they willingly entered into with sound minds. Some even suggest that the strict nature of the Divorce Act contributes to the high incidence of domestic and gender-based violence cases in Uganda.
Currently, the prospect of divorce by mutual consent lingers in a state of uncertainty. Legal experts persist in evaluating each case based on its individual merits, crafting arguments customized to achieve the sought-after resolution. Striking a delicate balance between entrenched tradition and contemporary rights in the dissolution of marriages remains an enduring challenge in Uganda—a reflection of the evolving dynamics within relationships in this ever-changing society.
As the debate continues, it remains to be seen whether Uganda will find a path that respects its rich traditions while also upholding the rights of individuals in unhappy marriages.
