In 1949, Murdock a functionalist, defined family as a social group characterized

by common residences, economic co-operation and reproduction; including

adults of both sexes, at least two of whom maintain a socially approved sexual
relationship and one or more children.1

Under Objective XIX of the National Objectives and Directive Principles of State
Policy in the 1995 Constitution of Uganda (as amended), a family is described
as the natural and basic unit of society and is entitled to protection by society
and the State.2

The 1995 Constitution of Uganda as amended under Article 31 is to the under

Article 31 provides for the rights of a family but still does not define it and
despite its failure to define it we see its no arguable substance firmly
recognized and enshrines it protection in society.3

International laws also clearly extradite the legal framework of a Family. The
1999 African Union’s Charter on the Rights and Welfare of the Child Article
18(1) attempts to give the nature of a family thus; "The family shall be the
natural unit and basis of society. It shall enjoy the protection and support of the
State for its establishment and development."4

Furthermore, we see that the Universal Declaration of Human Rights in similar

terms states under Article 16(3) that, "The family is the natural and
fundamental group unit of society and is entitled to protection by society and
the State.5

In Hendriks v Netherlands, UN Human Rights Committee, No. 201/1985, the

committee stated that, "The idea of the family must necessarily embrace the
relations between parents and child. Although divorce legally ends a marriage, it
cannot dissolve the bond uniting father or mother and child this bond does not
depend on the continuation of the parents’ marriage."6

In Uganda our native laws do not define what a family is and however much
they bring out the express terms of what a family is, it’s not been defined in
point of recognition is Article 31 which express the nature of a family and the
state duty to protect it in society ty.

1
Murdock
2
The National Objectives and Directive Principles of State Policy in the 1995 Constitution of Uganda (as amended)
3
The 1995 Constitution of Uganda as amended
4
The 1999 African Union’s Charter on the Rights and Welfare of the Child
5
The Universal Declaration of Human Rights
6
Hendriks v Netherlands, UN Human Rights Committee, No. 201/1985
Courts went ahead to restrict the definition of a family were the persons in
contention are in sort of a marriage. In Gammans v Ekins [1950] 2 KB 328 at
p. 331, talking of an unmarried couple, it was stated: to say of two people
masquerading as these two were as husband and wife, that they were members
of the same family, seems to be an abuse of the English Language’. 7

However, the expressed legal intention in Gammans V Ekins was disembraced

in the case of Fitzpatrick v Sterling Housing Association Ltd [ 2000] 1 FCR 21
which credited precedent on how a family structure and what can or could be
termed as family structure could be established. Thus the former decision in
Gammans V Ekins was later regarded as bad law with this later decision in
Fitzpatrick 8

The above legal scope and framework on family clearly brings out the current
legal position on family, and with the emerging trends today its composure and
effect is vital in accordance to how society is organized

I greatly find the emerging trends greatly outdating the legal framework in
existence in Uganda and concept as far as Family is concerned.

The Laws of Uganda still affirm to the Old technical customary outdated
systems still in support of extended families and Polygamy which however with
time to time become outdated and this is as a result of Globalization were it is
as seen as informal and unrealistic for a man to marry more than one wife, The
Mohammad an and Customary law are still applicable.

According to customary and Islamic laws in Uganda polygamy is legal as a

form of marriage however, globalization which promotes capitalism and
individualism has eroded such traditional systems of family systems which our
laws however still up hold which has made them outdated. Further still
affirming the above fact emerging trends today have notably hindered people
from participation and engaging these originative reasons due to a number of
reasons which are economic, social and development oriented.

The family in Uganda plays a big role in child protection and welfare through
its child rearing functions. It gives a sense of identity or belonging and culture
transmission between generations through socialization. The customary law in
Uganda holds that men retain sole parental authority over children in the case
of divorce, however with the emerging trends of society, this position has been
overruled and both the man and woman may have custody of the children

7
Gammans v Ekins [1950] 2 KB 328
8
Fitzpatrick v Sterling Housing Association Ltd [ 2000] 1 FCR 21
depending on the circumstances that may emerge in the facts at hand and this
position has been undertaken in a number of cases in Uganda. Section 29 of
the Divorce Act is to the effect with affirmation that Custody of children In suits
for dissolution of marriage, or for nullity of marriage or for judicial separation, the
court may at any stage of the proceedings, or after a decree absolute has been
pronounced, make such order as it thinks fit, and may from time to time vary or
discharge the orders, with respect to the custody, maintenance and education of
the minor children of the marriage, or for placing them under the protection of the
court.9

However much the laws in relation to family in Uganda are outdated they are
still operative and one way or another stably moving with the emerging trends
of society today.

The emerging trends of foster ship and consideration of adaptation of children

are a considerate and applicable nature of starting up families has been
included into our legal scope and Jurisprudence. Many people have the chance
to start up such families incase thy are unable to either have children or have
had challenges in family related matters. Prior such situations were not
accommodated for in the legal rules of Uganda, but with these emerging trends
the law makers were forced include and cater for in society in need. Part VII of
the Children’s Act establishes the legal procedure and Prerequisites for
adoption and therefore such a position gives basis of emerging trends10.

Family in context directly leads us to Marriage which in over view makes and
creates Family.

Marriage is the voluntary union for life of one man and one woman to the
exclusion of all others11 as per Lord Penzene in Hyde v Hyde and Woodhouse
(1866) LR 1 PD 130 at p. 133.

However, the distinctive nature and legal rules of marriage in Uganda deter
from the above definition as Polygamous marriages under the customary and
the Mohammadan laws are still in motion and greatly recognized in our
Jurisdiction.

The different laws in Uganda in concern to marriage will concur with the
drafter of this question that indeed most of these laws are out dated.

9
The Divorce Act of 1904.
10
The Children’s Act of Uganda of 1997
11
Hyde v Hyde and Woodhouse (1866) LR 1 PD 130 at p. 133.
Section 1(b) defines customary marriage as a marriage celebrated according to
the rites of and African community and one of the parties to which is the
member of that community, or any marriage celebrated as per under part 111
of the same act. Customs of Uganda recognize polygamous marriages12,
polygamous marriages are a marriage between a man and a woman in which
the man has the capacity to contract another marriage during the subsistence
of the first marriage. A feminist argument grounded on the principle of equality
of men and women arises against this provision. Article 21 of the Constitution of
Uganda provides that all people are equal before the law regardless of sex.
Article 31 of the Constitution provides that men and women of the age of
eighteen years and above have the right to marry and to found a family and are
entitled to equal rights in marriage, during marriage and at its dissolution. In
relation to the above trends women deserve equality which I guess should be
accredited to the henceforth. There such laws still in existence are greatly outed
and need to be amended13.

Internationally we see that our laws in regards to equality which some statutes
still breach are outdated, Article 23(4) of the International Covenant on Civil
and Political Rights (ICCPR) provides that State Parties shall take appropriate
steps to ensure equality of rights and responsibilities of spouses as to
marriage, during marriage and at its dissolution and thus such laws should be
brought to light with our existing laws in Uganda14.

Customary laws on marriage of Uganda acknowledge Bride price and Mifumi

(U) Limited v AG the argument by women activists that bride price was
unconstitutional was rejected15 however I find their argument valid and the
existence of Customary requirement for men as per the current trends we can
say it’s a resistant for many men to under their partners into rightly approved
marriages and this also has commercialized marriage worst of all it has made
women more so of chattels in marriages. However, it is my considered opinion
that the wellbeing of all women in marriage and Uganda’s compliance with her
international human rights obligations, would be best ensured by completely
removing the requirement for bride wealth as a condition precedent to a
customary marriage, and leave it at the will of the parties as a gesture of
appreciation.

12
Customary marriage act of Uganda
13
1995 constitution of Uganda as Amended.
14
The International Covenant on Civil and Political Rights (ICCPR)
15
Mifumi (U) Limited v Attorney General.
The issue of Divorce cannot be under looked The provisions of the Divorce Act,
particularly regarding the grounds for divorce, are obsolete. The Constitutional
Court has found unconstitutional and struck down several sections of the Act
on equality grounds. These changes have, until now, never been reflected in the
law via amendment. In the 200 4 Case of Uganda Association for women
Lawyers Vs Attorney General in which this act was challenged to be
unconstitutional under which the act allowed a man to divorce her partner if
she committed adultery, in case a man committed adultery a woman was
supposed to prove many other marital grounds for her petition to be
successful. This was declared unconstitutional and all the 5 constitutional
Court Justices agreed with the petitioners and Justice Galdino Okello and
Amos Twinomujuni even went Further ahead to make declarations, that all
grounds of divorce available to men should be available to women as well this
Further extradites the outdate laws that have been declared unconstitutional
and un proper to the current trends.16

Furthermore, the issue of Children cannot be undermined. The current

Succession Act 1906 allows children to inherit their parents Estates upon their
Death Upon their death17, and this however should further more be reviewed to
cater for the needs of Children with such a matter at hand the current laws
need to engage such provisions in laws as concerning the children’s rights in
case they lose their parents and how they are to handle matter s of such
magnitude in case they arise in society and also cater for these emerging
trends in society.

Widow inheritance, Customary laws are still in practice of outdated practices in

society 18this is greatly in breach of Articles 31 of the 1995 Constitution of
Uganda and for any person to be engaged in any marriage consent has to be
promised on both Parties and it has to be free but not driven by customary
laws that are driven but customary rites still legalized but outdated in society.

Denial of Conjugal rights are still a ground divorce in the divorce act however, a
spouse should be accorded a right to deny sexual intercourse incases of poor
health, surgery that affects the capacity in engaging in sexual intercourse,
child birth thus the existing laws are silent on such issues and thus as the
trends are advancing, people need to be legally protected.

16
Uganda Association for women Lawyers Vs Attorney General
17
Succession Act 1906
18
The 1995 Constitution of Uganda.
Article 292 of the constitution is to the effect that and provides for modification
of laws and given the supremacy of the constitution all laws must conform and
those that are inconsistent to it are null and Void to the extent of inconsistence
and the above laws in statutes should therefore be amended to conform to the
trends society.