Matrimonial property is defined in a case of Julius Rwabinumi v Hope Bahimbisomwe to mean “joint property between husband and wife and should be shared equally on divorce, irrespective of who paid for what and how much was paid… However, the application of the principle may vary depending on the nature of the marriage contract the spouses agreed to contract…

Uganda’s Constitution prohibits discrimination based on gender and accords men and women the same status and rights provides for the right of everyone to own property. In Uganda, interests in property are not acquired or lost by marriage as per the Succession Act. Overall, in the course of marriage, the separate property rule prevails in all recognized marriages. Neither the Marriage Act nor the Divorce Act sets out guidelines regulating property sharing at divorce or judicial separation.

Article 7(d) of the Maputo protocol which states that States Parties shall ensure that in case of separation, claimed sole ownership of the house whilst the woman claimed joint ownership of the house with 50 percent share. The Norwegian Supreme Court ruling in favour of the woman held that:

“The acquisition of the house was financed with the man’s income and that he had physically contributed directly to its construction, but his wife was occupied with taking care of the house and their three young children. In my view, this is what made it possible for the man to put so much work into the construction. When spouses practice such a division of labor, it leads to the wife being cut off from paid work and from any great physical participation in the construction business. The wife can be said to have helped the family get their own home, and legally I find it inappropriate to regard this effort as insignificant in relation to the man’s efforts in in the acquisition of the property.”

The principle that women should be entitled to an equal share of matrimonial property even if they have not contributed substantially to its acquisition was established in Norwegian law. Since then, it has been used in many court decisions and in 1991 it was codified in Article 31. In that case, the court specifically acknowledged “housework” as a form of contribution. The woman provided indirect contributions by taking care of their children and the home, making it possible for the husband to provide direct contributions by building the house and working and earning money in order to provide the materials used for the building.

However the laws might change resulting from a huge controversy that recently arose in the new judgment in the case of Ambayo Joseph Waigo (Appellant) Versus Aserua Jackline (Respondent) Appeal No.0100 0F 2015 (Appeal from the decision of the High Court of Uganda at Kampala before Bamugemereire, J (as she then was) dated 31st March, 2014 in Divorce Cause No. 10 of 2012 causing a stir in the public with different opinions, MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal stated in his judgment.

“In my view, by the appellant investing in the respondent’s education, he was in a sense paying her and thereby reduced on the quantum of her claim for the unpaid care work. The trial Judge erred not to have taken into account this mode of payment… To me, it simply shows that the different levels of education through which the respondent was exposed widened her world and granted her diverse people with whom to interact, refine and redefine her next stage in her life journey….” thus allowing the second ground of appeal that the learned trial Judge erred in law and fact when she held that the Respondent contributed to the acquisition of the Appellant’s property thereby occasioning miscarriage of justice.

In simple language the ruling of the case demands the respondent Aserua Jackline to expressly account for her contribution in the assets acquired by the couple throughout the subsisting marriage, reducing a marriage from being a union of two persons but merely a partnership wherein each party’s contribution should be quantified and valued by the law during its dissolution. Such degrades and destroys the values that marriage holds in society, it contaminates the views and perception of single people with intentions of getting married. We cannot reduce a spouse’s non-monetary contribution into acts that can be valued monetarily.  In creates a biased selfish narrative for people entering marriage. ‘What is mine is mine and what is yours is yours notion is created yet children end up being innocent victims.

Unfortunately, examples like Acts of service and emotional support cannot be put to measure so the question is how the court can guide on a fair way to make account of such services.

However, despite this argument, the question of fairness arises when one spouse seems to carry all the financial baggage throughout the marriage, one could advise that for any asset/ property bought or acquired for the benefit of the family, such should be shared equally on both spouses regardless of who suffers the financial strain. Nevertheless, Fairness can kill a marriage.  The steps that you take to improve a relationship is more important than holding out until everything feels fair. This leaves the solution rather blur stirred with emotions coming from views of Feminists, liberals and the patriarchy. Does the Norwegian law still hold water or would it be considered a rather outdated take?

Alinda Rachel

Intern, CEPIL