The Court of Appeal presided over by Justices Elizabeth Musoke, Muzamiru Kibeedi and Christopher Gashirabake, In their ruling on Thursday, made pronouncements with consequences on the rights of married persons & matrimonial properties when they divorce.
In their judgment in Ambayo Versus Aserua Civil Appeal No. 100 of 2015 the court stated that: Marriage does not give a spouse an automatic half-share in the matrimonial property.
They also ruled that a spouse’s share in the matrimonial property is dependent on his/her contribution to it. Contribution can take either monetary or non-monetary forms or both.
‘When court is determining the value of the “unpaid care and domestic work” rendered during the marriage, the judges observed that ‘ ‘it should take into account monetary value principles like the value or cost of similar or substitute services available on the labour or service market.’’
Where one party has, in the course of the marriage, contributed towards upgrading the other spouse in terms of educating her/him, such contributions, the court ruled that it should be deducted from the beneficiary spouse’s total claim for “unpaid care and domestic work”.
the non-monetary contribution usually consists of “unpaid care and domestic work” rendered by a spouse during the marriage like caring for the children, elderly and the sick members of the family, household chores, cultivating food for the family subsistence et cetra.
The facts leading to the appeal are that the appellant and respondent started cohabiting in 1989 when the appellant was aged about 24 years, while the respondent was aged about 19 years.
At the time of this judgment the respondent is about 52 years of age, while the appellant is about 57years.As usually happens in matters which have now been baptized “early marriages”, the respondent at the time she started cohabiting with the appellant had not completed her formal primary level education.
But the appellant supported and financed her return to formal schooling and the respondent make very commendable formal academic gains. She completed Primary Education from Nakasero Primary School, obtained a Certificate in tailoring and a Diploma in designing and dress making.
She also obtained driving skills. By the time the divorce proceedings were instituted she was self-employed as a seamstress, tailor, and baker.
During the cohabitation the parties also sired two daughters in the years 1992 and 2001, and two sons in the years 1990 and 1995. lt was during that period that the vacant plot on which the contested matrimonial house stands was purchased, and most of its development into a family home done. The parties moved in and started living there as a family around 2002. The plot on which the matrimonial house stands is unregistered/untitled; but the purchase agreement for the plot was written in the sole names of the appellant as the purchaser.
The contribution of each party to the property purchase and development were the subject of the dispute between the parties. After cohabiting for a period of about 16 years, the parties solemnized their marriage in 2005 from Our Lady of Africa Church, Mbuya, Kampala in accordance with the traditions of the Roman Catholic Faith as recognized by the Marriage laws of this country.
In 2007, the parties appear to have started onto the journey of developing the differences that eventually led to the irretrievable breakdown of their marriage. in 2012 the appellant commenced divorce proceedings against the respondent in the High Court of Uganda, Family Division, at Kampala, seeking the dissolution of the marriage on the grounds of adultery, cruelty, and desertion, to wit: Divorce Cause No. 10 of2012.
The respondent opposed the Petition and cross-petitioned for dissolution of the marriage on the grounds of cruelty, desertion, and inetrievable breakdown of the marriage.
At that time, the appellant was employed by Verona Fathers as a Maintenance technician for vehicles, generator, plumbing and electrical work. He also did some consultancy works. When the matter came up before the trial court, the parties partially settled the dispute by consent and the trial Judge issued a decree dissolving their marriage. Further, court granted an order for the joint custody of the children who were still minors. What remained contentious there after was the issue of the respondent’s contribution to the matrimonial home
After hearing the evidence of both parties, the trial Judge, Hon. Lady Justice Catherine Bamugemereire, J (as she then was), held that whereas the contract upon which the matrimonial home stands was in the appellant’s names alone, the house nonetheless belonged to the couple jointly in equal shares. She ordered that the house should be sold, or lt should be valued, and fifty percent of the value granted to the respondent “who worked so hard to acquire if’.
The appellant was dissatisfied with the decision of the trial Judge and appealed to this court. Property thereby occasioning a miscarriage of justice.
Grounds of Appeal
The appeal is based on five grounds of appeal which were set out in the Memorandum of Appeal as follows: The learned trial Judge erred in law and fact when she found that the Appellant’s property is matrimonial property thereby occasioning miscarriage of justice. 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.
The learned trial Judge erred in law and in fact when she held that the Appellant’s property be sold or valued and 50% of the proceeds be given to the Respondent thereby occasioning miscarriage of justice. The learned trial Judge was manifestly biased in favour of the Respondent during the trial and disregarded the Appellant’s evidence on the acquisition of his property. The learned trial Jude erred in law and fact when she failed to properly evaluate the evidence on record concerning acquisition, ownership and distribution of Appellant’s