A loud warning has been sounded to those inclined to follow practice rather than the strict letter of the law in divorce matters in Uganda. In Nagidde v Mwasa (Civil Appeal No, 168 of 2019), the trial judge granted a divorce without holding a hearing or receiving evidence from the parties, stating that the marriage had irretrievably broken down on account of irreconcilable differences. However, the Court of Appeal emphatically stated that as attractive as it was, irreconcilable differences was not a ground for divorce in Uganda.

The pronouncement brings down the curtain on a decade or so old practice in divorce courts where the court would make a summary inquiry into whether there is a marriage to protect, invariably answered in the negative, without the parties needing to prove the grounds for divorce. The sharing of matrimonial property and child custody issues would then be addressed. The practice certainly saved airing of dirty linen in public.

This summary divorce practice arose following the Constitutional Court’s decision in Uganda Association of Women Lawyers v Attorney General (Constitutional Petition No. 2 of 2003). The Constitutional Court found that the provisions of the Divorce Act (Cap. 249), prescribing grounds for divorce on a gender basis, were clearly discriminatory and therefore inconsistent with the Constitution. The court nullified these provisions and then uncharacteristically stepped out of its role of interpretation and attempted to prescribe law that the provisions on grounds for divorce, which it had just declared void, would now apply to both genders. In other words, the grounds for divorce previously preserved for men would now apply to women and vice versa.

If the court had restricted itself to directing that the application of the impugned provisions of the Divorce Act be brought in harmony with the Constitution, in other words, that the grounds for divorce be applied on a gender neutral basis, it would have done better than attempting to direct the application of the very provisions that had just been declared void. The Constitutional Court justified its decision to prescribe law saying that there was an urgent need for Parliament to enact the operational laws and scrap all the inconsistent laws, and that where Parliament procrastinates, the courts of law being the bulwark of equity would not hesitate to fill the void when called upon to do so.

Following the Constitutional Court’s ruling in 2004, the divorce courts were left uncertain as to the applicable law on divorce and resorted to holding summary divorce proceedings with contests mainly on custody of children and sharing of matrimonial property.

With the pronouncement of the Court of Appeal, divorce practitioners must now return to applying the strict letter of the Divorce Act, even though it no longer has any prescription on the grounds for divorce.

The Marriage and Divorce Bill 2017 attempted to reform the divorce law and had addressed the lacuna on the grounds of divorce. However, the Bill was scuttled over contentions with different stakeholders and its second reading in Parliament in July 2019 was postponed to allow further consultations to be carried out.

This recent decision of the Court of Appeal should drive impetus to salvage and complete the reform of the divorce law in Uganda.

Phillip Karugaba Head of ENSafrica Uganda [email protected] +256 772 785 332

Anita Kenyangi Legal Assistant Uganda [email protected]