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What amounts to matrimonial property? (Ambayo v Aserua Civil Appeal No.0100 0F 2015)

Friday, December 16th, 2022


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One of the saddest things about marriage today is the fact that many couples have decided to dissolve their union. Divorce and separation are one topic that we cannot ignore and with the latest news coming from the Court of Appeal, the distribution of property is one topic that is in dire need of discussion.

Marital property under Ugandan law strictly refers to property that is acquired by persons who were legally married ignoring the fact that several parties within our borders are cohabiting. This is the foundation upon which this article is based. The case of Muwanga Vs Kintu attempted to define marital property, where it was stated that “Matrimonial property is understood differently by different people.

There is always a property that the couple chose to call home. There may be a property which may be acquired separately by each spouse before or after marriage. Then there is the property that a husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.”

This definition was used to justify the previous decision made in the judgment upon which the recent civil appeal case of Ambayo v Aserua was based. The facts of the case were as follows; the appellant and respondent started cohabiting in 1989 to about 2005 when they solemnised their marriage. Within the said period, the couple sired four children and before officially getting married, they acquired land upon which their marital home stands and was purchased and all developments were made to make it a home.

The plot of land was registered solely in the name of the appellant as the purchaser. Proceedings for divorce started in 2012 upon which the judge issued a decree nisi to dissolve the marriage. The judge decided that even though the house was solely in the appellant’s name, it was marital property and it belonged to the couple in equal share. Therefore they were ordered to value and sell it. 

The appeal’s outcome has set a precedent in our law as the appellant was aggrieved with the judgement. Under Ugandan law, a spouse is entitled to an equal share in the matrimonial home, property owned jointly, and property acquired during the subsistence of marriage which the parties jointly contributed. The previous judgement considered the plot upon which their marital home stood to be matrimonial property even though it was purchased before their marriage. 

“A good marriage is one where each partner secretly suspects they got the better deal.”

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So what is marital property?

  1. According to Rwabinumi vs. Bahinbisonwe, all property acquired before marriage is the separate property of the spouse who purchased it. 
  2. Matrimonial property is a property whose purchase both husband and wife make monetary and/or non-monetary contributions. The non-monetary contribution would include instances where a spouse offers domestic services. In Kagga v. Kagga, it was stated that “when distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made by the respondent.

With the case at hand, we agree with the judge. The state of the property in question is matrimonial property even though it was purchased before the appellant and respondent were married. The key is to look at the intention of the parties, in this case, it was to have it as a family home.

Here are the new rules pertaining marital property;

i) Marriage does not give a spouse automatic half-share in marital property upon divorce as was previously expected.

ii) A spouse’s share in marital property is dependent on his or her contribution to it.

iii) Contributions to marital property can either be monetary, not monetary or both.

iv) The non-monetary contribution consists of unpaid care and domestic work rendered by a spouse during the course of the marriage. When court is determining the value of unpaid care and domestic work, it will take into consideration the monetary value principles like the value of cost of similar or substitute services available on the labor or service market.