A recap of the proposed Marriage and Divorce Bill as mover Opendi gears up for tabling in Parliament

In the 9^th Parliament, the government introduced a controversial legislation that was opposed by majority of male Ugandans because of the clauses that were deemed “tough” and likely to threaten the family life in Uganda.

Many families in Uganda go through a lot of challenges that are mostly resolved confidentially among the couples and sometimes many have braved through unresolved hardships for the sake of the sustainability of a marriage.

At the time, the government’s objective was to reform and consolidate the law relating to; civil, Christian, Hindu, Bahai and Customary marriages; marital rights and duties; recognition of cohabitation in relation to property rights; separation and divorce, and the consequences of separation and divorce.

Countrywide controversy arose when the content of Clause 114 came to be known by everyone especially men. The clause of conjugal rights sparked debate both in Parliament and in the general public because of the offense therein related to what was termed by women activists as “marital rape”.

Clause 114 (3) of the now shelved Bill proposed a fine of not less than Shs2.4m points or imprisonment not exceeding five years for a spouse convicted for a criminal offense of having sex with the other without consent. This is what was widely considered as marital rape and some social commentators were predicting breakage of marriages when the convicted party returns home after serving a punishment.

However, just a decade after the controversial legislation was shelved, the 11^th Parliament is about to process the Marriage and Divorce Bill, 2022 that is being drafted by Tororo District Woman Member of Parliament, Sarah Opendi.

The former Minerals State Minister was granted leave by Parliament on July 21, 2022 to draft the Bill that has already been deemed controversial because of the amendment she put to her motion in May 2023. In that controversial amendment, Opendi wants Parliament to cap the time within which couples can be in cohabitation hence proposing that it should be only for six months and thereafter such should be considered as marriage.

Recently, Opendi, who is also the Chairperson of the Uganda Parliamentary Women Association (UWOPA) held a consultative meeting on the Bill with legislators and FIDA Uganda, a nongovernmental organization which promotes, protects and preserves rights of women and children.

“We are going to have a final draft. I should be able to present this Bill for the first reading in Parliament in the next one or two months. Marriage takes place in communities but most of the marriages are not registered. We want to have formal registration of all marriages. The Bill intends to create order in the society and also ensure that marriage takes place in an organized way” Opendi was quoted in the media after the consultative meeting.

At the time of being granted leave, Opendi said that she was motivated to table the Marriage and Divorce Bill by the aspects of times change and also the fact that some of the aspects of the law regulating marriage have become absolute hence a need for urgent review.

“Other than having different aspects of marriage scattered in various legislations, the Bill provides for comprehensive legislation on matters relating to marriage under one law” Opendi said then.

She also made a reference to the Constitutional Appeal number 02 of 2010 in which Court ruled that bridal gifts should not be refunded. She added that the legislation will uphold the ruling because “women cannot be equal partners in marriage as long as gifts are mandatory for marriage”

For the outspoken Opendi, married to the Bukonzo West Legislator Godfrey Atkins Katusabe, there is still an uphill task of securing a Certificate of Financial Implication (CFI) from the Ministry of Finance before tabling the Private Member’s Bill in Parliament as per Section 76 of the Public Finance Management Act, 2015.

This law provides that for any legislation either by government or private member that is likely to cause a charge on the Consolidated Fund if passed by Parliament must be accompanied by the CFI issued by the Finance Ministry.

Marriage

Opendi wants the required age for marriage to be 18 years as it is in the 1995 Constitution and this should be done with the consent of both man and woman irrespective of whether the union is customary, civil or religious. The same draft seeks to inculcate in the marriage law a prohibition of same sex marriage being ordained on Ugandan soil while that solemnized outside the country would not be accepted too. The clause on the same sex marriages has already been overtaken by events after the passing of the Anti-Homosexuality Act 2023.

Legal unions

For the purposes of the Marriage Bill, Opendi proposes the legal union of a man and woman to be fully registered by the Uganda Registration Services Bureau (URSB) to be Customary, Christian, Hindu and Bahai marriages.

The details of these marriages would be captured at the District by the Registrar for Marriages whose office will be created under the new law. The Registrar of Marriages, it is proposed, would be the custodian of the marriage notes book at the district and would forward certificates of the new marriages to the Registrar General at URSB.

Customary marriages in this proposed law shall be conducted under the customs and rights of an ethnic group of one of the spouses or both. This marriage is to be registered by the Sub- County Chief who shall transmit the certificate to the District Registrar of Marriages. 

Widows’ rights

The Bill seeks to put a total ban on the traditional practices of widow inheritance and the proposal is to give a right to the woman to marry from her late husband’s family but there must be consent on both sides.  Forceful inheritance of widows would upon conviction attract a fine of Sh500,000 (25 currency points) or 1 year imprisonment or both.

Bride wealth

The proponents of the new law have considered the cultural aspects of bride price and in their Bill have left it as a requirement for marriage. However, they are against the current practices where parents in some communities send lists to their intended in-laws outlining the marriage gifts. The proposal is that these marriage gifts shall not be counted as part of bride price and they are non-refundable. Forceful recollection of marriage gifts will be an offense and upon conviction would attract a fine of Sh500,000 or one year in jail or both.

There has been debate in the public domain on whether it is time to abolish payment of bride price on a woman because whenever people have issues in marriage, some men have always threatened to call for refund of it which could be difficult for the female spouse’s family.

Objection to marriage

For religious marriages, the banns will be announced every seven days for a period of 21 days while for civil marriages there would be a three months’ notice. If the civil marriage is not contracted after the three months’ notice, another notice will be issued.

If a person successfully registers an objection to a marriage between two parties following a notice or banns announcement, the District Registrar of Marriages would refer the matter to the Chief Magistrates Court where a decision is expected within 15 days.

Voiding a marriage

Civil and religious marriages can be voided within six months of their contraction. Some of the proposed grounds for voiding a marriage include; unreasonable refusal to consummate it in 3 months; unable to consummate it in six months; and, if a man is permanently impotent and the fact was not known before time of contracting the marriage.

 Conjugal rights

This was one of the controversial pieces of legislation that made the Marriage and Divorce Bill, 2019 get a hostile reception especially among the men across the country.  Men looked this aspect of the law to be targeting them and favouring women from submitting to them sexually anytime they wished.

Opendi in her draft Bill proposed that Conjugal rights would be denied in the situations of; in poor health; aftermath of medical surgery; after child birth; and, if there is fear of physical or psychological injury or harm.  She has also replicated the controversial offense of marital rape as in the shelved 2009 bill with a fine of Shs2.4m or imprisonment for five years or both in case of a criminal offense and then suggests a restriction order, judicial separation, suspension of conjugal rights, and, compensation in case of a civil liability.

Property rights

It is proposed that if the law is enacted, both spouses shall have a right to; Matrimonial home, household property in matrimonial home, seed money provided by a spouse to start a business, property acquire before or during marriage that are deemed matrimonial by express agreement, and, a property that is separate but a spouse has made contribution to it.

However, it is proposed spouses shall have capacity to acquire their own separate property during marriage whereas any transaction on matrimonial property shall require written consent of the other spouse. Also, gifts given during marriage would be presumed to belong to the recipient.

Included in the same issue of properties is the debt burden. It is proposed that debts incurred by a spouse for necessaries of life of the immediate family with consent of the other spouse shall be equally borne by both.

Divorce

It has been proposed that divorce shall legally be done by order of Court if the marriage has lasted at least two years while separation can also be done by an order of Court. During separation, there shall be no sharing of matrimonial property but the Court can order sharing of income from those properties. The proponents of the bill want properties acquired during separation shall not be shared upon return of the other spouse.

Courts jurisdiction

The draft Bill indicates that the Chief Magistrate shall adjudicate matters of marriages solemnized under the Christian, Hindu and Bahai religions. The High Court is supposed to hear marriage cases for unions except for same sex that were contracted outside Uganda whereas the Local Council Courts will have jurisdiction over customary marriages.

Offenses

The Bill seeks to introduce offenses for crimes related to marriage. Some of these are offenses committed during matrimonial life and others which are committed by people who are not party to a certain marriage.

A person who falsely claims or asserts that he or she is married to a particular person commits an offense called jactitation of marriage and on conviction one is liable to a fine of Sh480,000 or one year in jail or both.

Like it has been in the Penal Code Act Cap 120, bigamy is an offense that would be catered for by this new law. Bigamy is a situation of conducting marriage with someone while officially married to another.  A person who commits bigamy will upon conviction be fined Sh2.4m or 5-year jail term or both.

While bigamy is an offense for a person who marries either through customary or religious union while he or she is married to another, the draft Bill also proposes a punishment of Sh2.4m or a jail term of one year or both for one who decides to marry a person her or she knows to be married.

Forging of a marriage certificate will also be criminalized, attracting a fine of Sh2.4m or jail term of five years or both whereas it is the same punishment for whoever will be found guilty of conducting or taking part in a fictitious marriage.

Another proposed punishment of Sh2.4m or five years imprisonment or both is for anyone found guilty of impersonating a marriage or marries someone under a false name or description whereas government officers who will fail to transmit certificate of marriage for registration would be fined Sh480,000 or a jail term of one year or both.