THE LAW RELATING TO MATRIMONIAL PROPERTY IN UGANDA.

According to Duhaime’s law dictionary, matrimonial property is defined as property owned

by one or both of the two persons who are married to one another which upon the application of
one of the spouses, to a court, is subject to division between. The law relating to matrimonial
property is profoundly based on the concept of marriage. This law only and strictly applies to
married or formerly married persons. In Case v Ruguru, court held that since the defendant was
not legally married to the plaintiff, she could not base a claim of occupancy on ground that she
was the plaintiff’s wife.
Ordinarily, marriage is the legal union of a couple as husband and wife. According the
constitution, a person of the age of 18 years and above has a right to marry 1.There are various
forms of marriages in Uganda. The forms of marriage recognized are under the Marriage Act
Cap. 251, Customary Marriage (Registration) Act Cap. 248, the Marriage & Divorce of
Mohammedans Act, Cap. 252, the Hindu Marriage & Divorce Act, Cap. 250 and marriages
contracted under or in accordance with any customary law recognized by the law of Uganda.
Matrimonial property in Uganda is not clearly defined either by statutory law or case law.
However courts have tried to determine what amounts to matrimonial property. In the case of
Muwanga v Kintu 2, Bbosa J noted that matrimonial property’ to which each spouse should be
entitled is that property which the parties chose to call home and which they jointly contribute
to.”
State of property in pre- colonial times;
To best understand matrimonial property law, it is important to understand the social perception
of women’s property rights in Uganda at the different times. Matrimonial property law cannot
easily be detached from the law relating to women’s property rights. Indeed there is no better
argument to support this factual assertion than that of Twinomujuni JA in Julius Rwabinumi V
Hope Bahimbisomwe 3when he stated that, A woman was regarded as a property of the man and
totally incapable of holding property of her own independently of the man. As a result, the earlier
court decisions held that women in a matrimonial relationship could not acquire and hold real
property.
1
Article 31

2
High Cotitt Divorce No. 135 of 1997.

3
Civil Appeal no.30 of 2007
’In the pre-colonial era, marriage and matrimonial property were basically governed by
customary law. Customary law depended on the customs of the different societies in Uganda.that
is the Baganda had their own rituals and procedures to matrimonial property distribution and the
same was to other tribes depending n their traditions. During this time women could not own
property. The property was basically owned by the man. A woman could hardly claim a thing on
divorce. Okumu Wengi argues that this is because a woman was considered as a source of labour
and divorce meant loss of source of labour 4
Colonial era;
5
During the colonial era, courts interpreted customary law in terms favorable to women The
courts protected the rights of women in relation to matrimonial property and ownership of land.
The protection of these rights was embedded in two legal principles; the house property complex
and the principle of gifting.
The house property complex organized assets around autonomous female-headed houses. Men
retained a few parcels of land but distributed the bulk of their assets to women for food
production. This was premised on the idea of social order through food production. Under the
idealized house-property complex, land passed from mother to son. Should a woman die or
divorce before their maturity, the husband holds the land in trust for them 6 On the other hand the
principle of gifting was simply premised on the idea that once a man had allocated property to a
wife’s house, the courts made it difficult for him to take it back. 7The colonial courts perceived
female authority to be a guarantor of social order from the 1930s to the late 1960s8). Matrimonial
property law at this time recognized women’s rights in marriage and sought to protect them.In
the period between 1960s -1995 the law in relation to matrimonial property took a different
position. Khadhadiagala argues that it was not until the late 1960s that courts favoured a more
patriarchal vision of family and by the 1990s, entrenched in judicial doctrine was a legal
presumption that property belongs to the male head of household. This postulation reiterates the

4
Weeding the Millet Field

5
Khadhadiagala, 2002 pg.2

6
Khadhadiagala, 2002, pg. 10
7
Khadhadiagala, 2002 pg.2

8
Khadhadiagala, 2002 pg. 1
dictum in Twinomujuni’s judgment in Rwabinumi’s case supra when he observed that the law
has a ‘long history of treating the woman as an inferior partner in marriage.
property law was governed by the Divorce Act 1904 which had its origin in the Matrimonial
Causes Act of 1857 of England which Act had its roots in the common law of England. At
common law the wife almost owned nothing. The wife’s freehold property was controlled by the
husband while her leasehold property belonged absolutely to her husband. If the husband died
before the wife, she resumed the right to all her freeholds but when she predeceased him, her
estates descended to her heir subject to the husband’s right, as ‘tenant by the courtesy of England
to an estate for his life in all her freeholds in possession9’
During marriage, the wife took no interest in her husband’s real property. If she survived him,
she became entitled by virtue of her dower to an estate for life in a third in all her husband ’s
freeholds of which he had been seized in possession at any time during marriage, provided that
she could have borne a child capable of inheriting, whether such a child was ever born or not 10
All property in possession belonging to the wife at the time of marriage, or acquired by her
during the marriage, vested absolutely in the husband who had the power to dispose of them. 11
In Lailai Ghinamouze V The Queen12, court held that chattels in the matrimonial home are
naturally presumed to be property of the husband. Even if the husband died intestate during the
wife’s life, the property did not revert to her.
After the promulgation of the 1995 constitution; There was a radical change in the law
relating to matrimonial property in Uganda after the promulgation of the 1995 Constitution. The
Constitution introduced a new principle of law in relation to matrimonial property; the equality
in marriage principle13 and it is to the effect that men and women are entitled to equal rights in
marriage, during marriage and at its dissolution. As a result, several provisions of the Divorce
Act which were not in conformity with the Constitution were declared null and void. This was
seen in the case of Uganda Association of Women Lawyers & Others v Attorney General
Constitutional Petition No.2 of 2003.
9
Lowe & Douglas

10
Lowe & Douglas, 2007 Pg.128

11
ibid

12
1956

13
Article 31(1) 1995 constitution
The question of equal rights in marriage has been a subject of debate. In Julius Rwabinumi V
14
Hope Bahimbisomwe , Twinomujuni JA held that at the time the bridegroom and bride
become husband and wife, all the property they own become joint matrimonial property and on
separation they should be equally divided and shared to the extent possible and
practicable.However on appeal to the Supreme Court, Kisakye JSC observed that the learned
Justice of Appeal not only wrongly articulated the law as to what constitutes matrimonial
property, but also how and when individually held property of person acquired before or during
marriage becomes matrimonial property. The court held that a spouse can own individual
property as per Article 26 or jointly with his/her spouse.
Further it was held that,’ Article 31(1) (b) of the Uganda Constitution (1995) guarantees equality
in treatment of either the wife or the husband at divorce, it does not, in my opinion,require that
all property either individually or jointly acquired before or during the subsistence of a marriage
should in all cases, be shared equally upon divorce.’ It was concluded that the question whether
individual property became joint matrimonial property and whether it should be divided equally
on divorce depends on the facts of each individual case.
Property Owned by Spouses at the time of marriage the law presumes that marriage will not
have an effect on the ownership of property vested in either of the spouses at time of marriage.
This also applies to property which is used by them jointly in the matrimonial home like
furniture in the absence of express gift of a joint interest in law or in equity. For the joint-
interest-to be-created, both parties should contribute in the same –way purchase of such an item
which could mean they owned it jointly before the marriage, Justice Kisakya J who gave the lead
judgment in Julius Rwabinuni V Hope Bahimbisomue Quoted KAGGA V KAGGA 15when
MWANGUSIYA .J observed that, "our court have established a principle which recognized each
spouses contribution to the acquisition of property and this contribution may be direct when
distributing property of divorce couple, it is immaterial that one of the spouse was not
financially endowed as this case nearly showed that while the first response of the finance
muscle behind all the way, they inquired. This contribution of the petitioner is no less important
than that made by the respondent. In MUTHEMBWA V MUTHENBWA16, here the Kenyan
14
Civil appeal n0. 30 of 2007

15
HC DIVORCE CAUSE NO 11 (2005)

16
2002) 1 EA 186
court of appeal held that the issue of the respondent contribution is the question of fact and the
court held further that where it was impracticable to take account for the purpose of determining
the respective contribution of the parties of the management of the home. There arose reputable
presumption of unequal contribution. The learned Justice concluded these by setting that the
contributing spouses share is no restricted to maximum of 50% shared either in the matrimonial
home or in other jointly held property.
Matrimonial property in regard to income of the either spouses there is also the presumption in
law that income of either spouse from business investment on any other sources will prima facie
remain his or her Property. however where the spouses pull together resources into a common
fund, They both acquire a joint interest in the fund in JONES V MAYNARD 17, VAISEY J
referred to such pool as a common purse, he said "in my judgment, when there is a joint account
between a husband and wife, a common pool into which they Put their resources and, earnings,
its not constitute with that consumption that the account should thereafter be picked apart and
divided proportionally to the representative contribution of husband and his wife, the husband
begins crediting with the whole of his earnings and the wife with all of the her dividends, I do
not belief that, when once the joint pool has been formed, it ought to be , and can defected in any
such manner. In my view, a husbands earning made on behalf of both, and the ideas that he has
after the contents of the pool can be deflected by taking an elaborated account as to how much
was paid in by the husband or wife is quite inconsistent with the original fundamental idea of a
joint purse or common pool. In my view, the money which goes into the pool becomes a joint
property. The husbands if he wants a suite of clothes, draws a cheque to pay for it. The wife if
she wants any housekeeping money draws a cheque, and there is no disagreement about it.Note
however, that "common purse "notion will depend on the intention of the parties to create a joint
fund from which any of them can withdraw freely, this of course, subset to express agreement
between the partners, its usually a joint account in the bank where however, the fund contains
solely a contribution from one spouse, it is a question of fact whether this is to remain his or her
exclusive property or whether there Is an intention to established a common fund.Property
bought from such a joint fund will belong solely to that party that withdrew the money for its
purchase where the items bought is for personal use like a cloth.

17
1951) CH 572
If the item is for their joint use then the item be for both of them e.g.- In the case of RE BISHOP
18
Large sums-of-money had been withdrawn by both spouses to purchase investments.in their
separate names. In many cases blocks of share were bought and half put in the names and the
other half in the other-name other money spent in taking shares offered to the husband by virtues
of rights which he based an existing shareholder in companies concerned. stamp j held that
where a husband and wife open a joint account by either of them ,in my judgment ,in the absence
of facts or circumstances which indicated that account was indented or was kept for some
specific or limited purpose, each spouse in drawing money out of the account, is to be treated as
to be doing so with the authority of the other and my judgment if one of the spouses purchases a
chattel for his own benefit or an investment in his or her name, that chattel or investment
belongs to the person in whose name its purchased or invested. For in such a case there is in my
judgment, no equity in the other spouse to display the legal ownership of the one in whose name
the investment is purchased. What is purchased is not to be regarded as purchased out of a fund
belonging to the spouses in the proportion in which they contributed to the account or in equal
proportion, but out of a pool or fund of which they were at law and in equity, joint tenants. It also
follows if one of the spouse draws on the account to make a purchase in the joint name of
spouses, the property purchase since purchased in joint name, is prima facie joint property and
there is no equity to displace the joint legal ownership. There is, in many Judgments, no room for
any presumption which would constitute the joint holders as trustees for the parties in equal or
some other share.

Matrimonial home as a matrimonial property.

Uganda, the law that defines matrimonial home is mortgage Act-2009. The Act defines
Matrimonial home in S. 2 to mean a building or part of the building in which a husband and A
wife or as husband as the case may be wives and their children, if any-ordinary-resides together.
The complexity of the issue of deciding which party to a marriage will be given Matrimonial
home on divorce lies on the facts that in law, the house and furniture in it, it is never regarded as
belonging to only one spouses exclusively.
18
1965) HC 450
BROMLEY provide for the issue distinct interrelated problems concerned with matrimonial
home. These are ownership and occupation, the first question is concerned with, in which the
legal and beneficial interest and property are invested.

The aspect of ownership and beneficiary interest in matrimonial property.

decision on property bought by a spouse with his or her money presumptively belongs to the
purchaser exclusively. And-such a spouse owns the beneficiary interest in the Property.
However, if the husband is buying. The house conveyed it in the names of the wife at the time of
purchase, even if he used his money, the law presumed that advancement was intended for the
wife in the event that couple got married while one of the spouses owns the house, this rule still
applies.

The law also recognizes the creation of property right in matrimonial home arising out of trust
relationship. This trust could be resulting, implied and constructive in nature. Resulting trust here
mean a trust that arises whenever a person Buys a real personal property and has it conveyed or
transferred into the name of another or himself and another. The law presumes that the other
holds property on trust for the person who has provided the purchasing money.

S38 of the land Act in relation to matrimonial property.

legal aspect guarantees the security of occupancy of each spouse on family land. This means
that the spouse has a right to have access to and live on family land. The land Act as amended
under section 32 restricts transfer of family land without spousal consent. The act prohibits the
sale, exchange, mortgage, lease or transfer of

family land without the consent of his or her spouse In Alice okiror and Others V Global
Capital save (2004) and others. It was held in absence of spousal consent to mortgaging the
property in issue for the amount stated, there in, the mortgage created over it was void.

Where a spouse makes a substantial contribution to the property, it will be considered

matrimonial property. The contribution may be direct and monetary or indirect and non-
monetary. In Muwanga v. Kintu,19 Bbosa, J., adopted a wider view of non-monetary indirect

19
High Court Divorce No. 135 of 1997
contributions by following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu 20.
In that case, Omolo JA found that the wife indirectly contributed towards payments for
household expenses, preparation of food, and purchase of children’s clothing, organizing
children for school and generally enhanced the welfare of the family and that this amounted to a
substantial indirect contribution to the property.
The property a couple chooses to call a home will be considered joint matrimonial property.
This together with the property either of the spouses contributes to is what matrimonial property
is. Summarily, Bbosa J in Muwanga v. Kintu supra held that 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.”ome, will no longer be penalized as was previously the case in financial
contributions.
Distribution of Matrimonial property;
The question of whether property should be divided equally on divorce depends on the individual
circumstances of the case. In Gissing v. Gissing, the House of Lords held that it is not in every
case that the parties hold in equal shares. In Mayambala v Mayambala,21 the wife’s interest in
the matrimonial home was established at a 70% share. The Supreme Court in Rwabinumi’s case
supra summed it up and held that whether such property should be divided either in equal shares
or otherwise depends on the facts of each case.
The other important legal aspect in relation to matrimonial property is enshrined in section 38 of
the Land Act as amended. The section guarantees the security of occupancy of every spouse on
family land. This means that the spouse has a right to have access to and live on family land. The
Land Act as amended under section 39 restricts transfer of family land without spousal consent.
The Act prohibits the sell, exchange, mortgage, lease or transfer of family land without the
consent of his or her spouse. In Alice Okiror & Anor v. Global Capital Save 2004 & Anor, it
was held that in the absence of written spousal consent to mortgaging the property in issue for
the amount stated therein, the mortgage created over it was void.
have been attempts to modify the law relating to matrimonial property in Uganda. However
these attempts have been futile. First was the Domestic Relations Bill 2003. This bill had been in
parliament since 1965. It sought to define matrimonial property thereby clearing the doubt as to

20
[1990 – 19994] E.A. 270

21
High Court Divorce Cause No. 3 of 1998,
what constitutes matrimonial property. Under clause 65(1), the bill defined matrimonial property
to include the matrimonial home, household property in the matrimonial home; property
acquired during the subsistence of the marriage and deemed to be matrimonial property by
express or implied agreement and immovable property owned by either spouse which is the basic
income of the family. This bill was however rejected.
The other attempt has been in the Marriage and Divorce Bill, 2009. This bill was a bit broader
and under Clause 116 it defined matrimonial property to include separate property which a
spouse made a contribution to and seed money by a spouse for establishment of a business. The
bill under clause 123 recognized separate properties even during the subsistence of the marriage
and prohibited taking into account separate property in distributing matrimonial property.
Likewise this bill has never been passed into law.
Recommendations .

Due to the existing loopholes in the legal regime governing the division of matrimonial property
at the dissolution of the marriage, the researcher makes the following recommendations to be
considered in narrowing down this gap. Prenuptial agreements should be made a condition
precedent to the marriage contract; a prenuptial agreement is a contract or an agreement laying
down property entitlements for each party.

The Parliament and other stake holders in exercise of their mandate as embodied in Article 79
(1) and (2) should enact a specific set of laws to widely cover the criteria to be followed in the
division of matrimonial property especially in instances where there has been solely a
nonmonetary contribution of either party.

The matrimonial property legal regime as found in scattered statutes and case law precedents
should be gathered, revised and harmonized and consolidated to meet a single resolution of
issues.

The parties at dispute in the divorce case where it is in so far as still possible should be given
chance by initiating a session to agree and make a settlement on how their property should be
divided after court’s pronouncement on a decree absolute dissolving the marriage.
Bibliography
The 1995 constitution of Uganda
Bromley's Family law
Khadhadiagala
Mortgage Act 2009
Divorce Act
Land Act