KAMPALA – Knowing the background of our Laws shaded with the Pencil of old English colonialism, which served the crown and which crown (in turn) drew its convictions from the Church explains a lot about the original legal stand on the subject of Marriage and Divorce. However, it is evident how some leaves withered off from this tree.
From the Bible, Marriage is depicted as a one-way street until death separates the two to join them unto God, with the ultimate teaching depicting marriage as a life contract between a man and a woman. Gen 2:24(MSG) is instructive on this principle that “Therefore a man leaves his father and mother and embraces his wife. They become one flesh”. The Bible on the same concept further directs that no man should put asunder what God has joined together, and this seemingly includes the Parties contracting the same marriage.
However, as the times cast the dim light of change upon the status quo, the reality on the ground seemed to contravene the seemingly divine order on marriage and therefore the crown had to painfully craft laws to govern divorce, with the church watching on in disappointment.
With this background, it is worth noting that the Law on Marriage and Divorce has been equally amended over time, both by Parliament and the effects of Court Decisions. Therefore leaving the debate about divorce, it important to discuss how the law governing Divorce fits in the rest of the domestic Substantive and Procedural Legal puzzle, seeking justification for the current law, and suggesting a different perspective especially on the concept of Mutual consent in Divorce Petitions.
The Civil Procedure laws accommodate Consent Judgements and Judgements on Admission. The law grants parties a chance to agree on the facts, the issues at hand, and even the prayers sought by the Petitioner or Plaintiff. This is the spirit behind the compulsory mediation, and other legal avenues put for parties to agree on issues surrounding the case before court. Several other laws like the Mediation rules have been put in place to govern mediation with the intention of having the parties agree on some(if not all) the issues before Court to save Time and resources. Therefore consent Judgements are the fruits of the system that accommodates mediation and Inter-party agreements. The question as to whether the same principles apply to Divorce cases still remains vaguely addressed, with various judicial officers treating the matter differently.
A case in point is Order 13 Rule 6 of the Civil Procedure Rules which provides for Judgement on Admission where court can enter judgment as it deems fit based on any party’s admission of any fact to a suit is permitted to. The question is therefore of Divorce can be granted merely because the Party has admitted to the accusations against him or her by the Petitioner in a divorce case.
In relation to the Applicable law, Section 4 of the Divorce Act Cap 249 (as amended by case law) provides for the 3 major grounds of Divorce that is; adultery, cruelty, and desertion. The strict interpretation of this provision and previous court Decisions is that no Judicial officer can grant a Decree for dissolution of marriage except one of these grounds have been proved. Needless to say, the legal fiction is that it is the state that confers marriage, and it therefore only a state that can dissolve it. By example, this would, therefore, mean that if a one Kanyesigye West brings a petition for divorce on claims of cruelty by his wife, even if his wife admits to the accusations and assents to the Plea for a divorce, court will not grant the same except the cruelty alleged is proved beyond the balance of probabilities.
Please note that from the same interpretation of the Divorce Act, “irretrievable break down of marriage” is not a ground for divorce but can only be the evidence of any of the grounds given under the Act. The same therefore cannot work as a basis for a Divorce Petition. While addressing this subject when it arose in England in the 1960’s, The Archbishop of Canterbury’s Committee report as quoted in The Seven Pillars of Divorce Reform defined Breakdown of marriage as being such failure in the matrimonial relationship, or such circumstances adverse to that relationship that no reasonable probability remains of the spouses again living together as husband and wife for mutual comfort and support
Section 7 of the Divorce Act confirms the above position by providing for the dismissal of the Petition upon ‘discovery and satisfaction of the court that the petitioner connived, condoned or was an accessory to the partner’s adultery or going through a second marriage’. The court shall further dismiss a divorce Petition if it finds as that the petition is presumed in collusion with either the Respondent or correspondent.
Therefore, Collusions and Connivance have for long been grounds for dismissal of Divorce Petitions, leaving the entrance into marriage by consent and agreement, but the exit conditional upon proof of the grounds set by law.
It seems therefore that the sprouting practice by some Judicial officers seemingly permitting consent in divorce practice (though illegal and seemingly an abuse of discretion) is nothing more than a demonstration against the current legal regime.
There has however been a plea to have the position in the Divorce Act be reconciled with the provisions in the Civil Procedure rules that allow consent judgments and Judgements on admissions as discussed above. Those against the status quo have argued that the stringent grounds and denial of consent to divorce are unnecessary and a big barrier to the desired justice in the quickest possible time
It has therefore been recommended that the grounds for divorce be extended to include Irretrievable breakdown of the marriage, and also amend both substantive and procedural law to permit Divorce by consent.
Some legal scholars have argued that provisions of the 1995 Constitution of the Republic of Uganda (as amended) that ‘a person of the age of 18 years and above has a right to marry and found a family and the pair are entitled to equal rights in marriage, during the marriage, and at its dissolution’ should be extended to an automatic right to divorce by consent.
The critics of this school of thought have in turn argued that this would water away from this scared institution of marriage, and use the same as an “institution of emotions” rather than seeing it as the most important unit of nation-building. This school of thought subscribes to the idea that the strict grounds for divorce are necessary to test the Petitioner’s desire and conviction to divorce. They also urge that limiting Divorce is vital of safeguarding the interests of the children, who are oftentimes the helpless” victims” of the process and the result of divorce.
The two concepts subject to this article inevitably go hand in hand and it is only logical that if the principle of ‘irretrievable break down of marriage’ were adopted as a ground for divorce, it would automatically mean that the Parties have “connived” to get a divorce. However, to curve away from the corners, the law may be amended to strictly define Collusion as co-operation by a couple to deceive the court in order to get a divorce. This would, therefore, open the Divorce Practice to permit Consent to divorce, and also consent on other issues like custody and maintenance of children, and distribution of matrimonial property.
Therefore, regardless of whether one subscribes to divorce or not, it only seems fair to those undergoing the process to be accorded a fair legal process accorded to other areas practice, including but not limited to consent Judgements. Concluding this, the academic and practical discussion, however, would be unfair to the subject since that it goes deep into other subjects of faith, culture, religion and nation building.
The author is a Christian Lawyer, and a Legal Associate at PACE Advocates, a budding law firm in Kampala.