MATRIMONIAL PROPERTY GROUP 5

The law relating to matrimonial property is hinged on the concept of marriage.

This law only and strictly applies to married and/or formerly married persons.
In Case v Ruguru, (1970)EA 55 court held that since the defendant was not legally
married to the plaintiff, she could not base a claim of occupancy on ground that
she was the plaintiff’s wife.
Marriage is the legal union of a couple as husband and wife (Black’s Law
Dictionary pg. 3084). Under Article 31(1) a person of the age of 18 years and
above has a right to marry. There are various forms of marriages in Uganda. The
forms of marriage recognized in Uganda include marriages conducted in
accordance with the Marriage Act Cap. 146, Customary Marriage (Registration)
Act Cap. 143, the Marriage & Divorce of Mohammedans Act, Cap. 147, the Hindu
Marriage & Divorce Act, Cap. 145 and marriages contracted under or in
accordance with any customary law recognized by the law of Uganda. A person
can contract a marriage in any of the above forms.

Matrimonial property according to the Black law dictionary is defined as that

property that is acquired during marriage and that is subject to distribution or
division at the time of marital dissolution.
At common law property was generally owned by only husband. Today the law
generally allows husbands and wives to own property. Property in marriage may
have different dimensions:
In Muwanga v. Kintu, High Court Divorce Appeal No. 135 of 1997, (Unreported),
Bbosa J., rightly pointed out the challenges that courts will continue to face in
determining what constitutes matrimonial property in Uganda, when she
observed as follows:

“Matrimonial property is understood differently by different people. There

is always property which the couple chose to call home. There may be
property which may be acquired separately by each spouse before or after
marriage. Then there is property which 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.”
Her formulation is insightful and provides a good starting point for a court seeking
to make that determination.
Originally women couldn’t inherit property in their own right. They only had factory
rights and courts were strict against women in cases that involved claims over
marital property.
Today the legal position that women can’t own property in their own right has
changed. They can acquire property irrespective of their marital status. Article 26
of the constitution of the Republic of Uganda states that every person has the
right to own property either individually or in association with others.
In Uganda VS Kitanda (1977) HCB 111 The High Court recognized that a woman
regardless of her marital status can own property in her own right.
Moonlight Sengooba Vs A.G, the court held that the English Married Women’s
Property Act (MWPA)(1882) which allows women to own property in their own
right was applicable in Uganda.
Historically the MWPA(1882) was of universal application. It provided that any
woman marrying after 1882 should be entitled to retain all property rights owned
by her at the time of the marriage as her separate property. And that whenever
she was married, any property acquired by a married woman after 1882 should
be held by her in the same way.
Section 27,39 of the land Act cap 236 also recognizes ownership of property by
women and outlaws any decision against women.

The Supreme Court in the case of Julius Rwabinumi vs Hope Bahimbisomwe (civil
appeal No. 10 of 2009) set the guidelines for sharing of property by a divorcing
couple.
The basis of the Court’s decision was Article 26 of the 1995 Constitution which
recognizes everyone’s right to own property either individually or in association
with others.
The property can be categorized into the following.
i). Property acquired before marriage. This shall be held solely by the
spouse who acquired it.

ii). Matrimonial property. That is property which the couples refer to as

their matrimonial home, where they live and stay and the property they
contribute to. This shall be shared equally between the couple (50%)
iii). Property acquired during marriage solely by one of the spouses shall
be held by the spouse who acquired it.
 iv). Property acquired during marriage by both spouses or where one
of them made a contribution shall be shared according to each spouse’s
contribution.

However, the above notwithstanding, the couple is at liberty to execute a legal

instrument and to transfer into joint or sole ownership land and/or property he or
she held prior to the marriage in favour of his or her spouse, either at the time of
contracting the marriage or any time after the marriage has been celebrated.

Matrimonial or marital homes.

Several issues have arisen with regard to property vested in one party but another
carries out some improvements on it either by cash payments or work done on
that property. These issues have mainly arisen as regards matrimonial homes. The
issues are whether such improvements when carried out do give rise to any
interest in the property to the party making such improvements. The answer has
depended on whether such improvements were of a substantial nature.
Pettit Vs Pettit (1969) the wife got a matrimonial home and registered it in her
names. As a result of doing some work on the home, the husband claimed that
he had upped the property value by over 1,000 pounds. Most of the work done
by him consisted of redecoration of the bungalow, making the garden a wall and
some work outside the home. No agreement as to the rights was made. The two
subsequently separated. The issue was whether the husband had acquired some
interest in the property?
The house of lords held that he had acquired nothing. He could claim nothing on
the grounds that he had acquired interest in the property because the work he
had done was of an ephemeron nature. It was a do it yourself job which any
husband could be expected to do in his leisure time.
Edith Nakiyingi Vs Merekicadeki (1978) HCB 107
In this case the wife contributed to the building and maintenance of the
matrimonial home for 12 years. The husband in divorce proceedings sought to
evict her from the home.
Court held interalia that the husband has the duty to provide the wife with a home
and if he wants to evict her, he must find alternative accommodation. That since
it is the husband who terminated the marriage in the ages of equity he couldn’t
chase the woman from the house to which she substantially contributed.
Court explained that by merely spending money on another’s property, it does
not as a general rule give one any proprietary interests therein.
However, the doctrine of Equitable Estoppel subsists i.e if the owner encourages
the other to expend, he is estopped from denying his or her proprietary interests
so acquired. Court further emphasized that where a matrimonial home is owned
and jointly held even though one of the spouses makes substantial improvements
or contribution, the property is presumed to be owned together. Hence the house
in this case was jointly owned and both parties were trustees of the house and
owned equal interest therein. Court didn’t order the sale of the land and the
house but held that the wife had a right to remain there until she remarried or the
husband found her a reasonable alternative.
Gissing Vs Gissing (1970). The matrimonial home was bought and put in the
husband’s name. the wife paid for the furniture and household expenses. The
issue was whether or not the wife was entitled to the benefits of the matrimonial
home.
In an action the court held that there was no common intention that the wife
should have any such interests in the home and no express agreement to that
effect.
The court further noted that where the contribution is indirect it’s difficult to
determine how much was contributed. Denning U in his dissenting opinion held
that where a person makes a substantial contribution to property he/she should
acquire interest therein especially women who do a lot indirectly. In Uganda the
indirect contribution made by women to an interest in property was upheld.
The issue of how a court should determine a contributing spouse’s share in joint
property has come up in several cases before the High Court and the Court of
Appeal. In Kagga v. Kagga, High Court Divorce Cause No. 11 of 2005,
(unreported), for example, Mwangusya, J. observed as follows:

“Our courts have established a principle which recognizes each spouse’s

contribution to acquisition of property and this contribution may be direct,
where the contribution is monetary or indirect where a spouse offers
domestic services. …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 be the respondent.”
The court proceeded to order for the registration of 50% interest in the parties’
matrimonial house, and for the transfer of several other houses in favour of the
wife, despite the Judge’s finding that the wife had only rendered domestic
services, as opposed to the respondent husband who was “the financial muscle
behind all the wealth.” See also, Sempiga v Sempiga Musajjawaza, High Court
Divorce Cause No. 007 of 2005 (Unreported), where the court awarded the wife,
among others, a 50% share in a Farm measuring 154 acres. These decisions were
clearly consistent with English cases such as Chapman v. Chapman, [1969] All E.R.
476 , where the wife was held to have acquired an equal share in the property
although she had not made an equal cash contribution to the acquisition of the
property in question. The court found and held that the husband and wife had
put all their financial resources into the pool to purchase their house without
reserving any special interests. In Muthembwa v Muthembwa, [2002] 1 EA 186,
the Court of Appeal of Kenya also rejected a similar argument by the appellant
husband contesting an order awarding the wife a 50% share in all the matrimonial
home and other properties and businesses. The court held that the issue of
whether the wife had made a contribution to the acquisition of the suit properties
was a question of fact. The court further held that where since it was
impracticable to take accounts for purposes of determining the respective
contributions of the parties to the management of a home, there arose a
rebuttable presumption of an equal contribution.

It is also worth noting that the contributing spouse’s share is not restricted to a
maximum of 50% share either in the matrimonial home or in other jointly held
property. In some other cases, the court awarded a higher percentage share
either in the matrimonial home or in some other properties. For example, in
Mayambala v Mayambala, High Court Divorce Cause No. 3 of 1998, the wife’s
interest in the matrimonial home was established at a 70% share. Similarly, in
Kagga, (supra), the court awarded the wife several other houses and properties,
in addition to the 50% share she received in the parties’ matrimonial home.
The other pertinent question that arises is what amounts to contribution to earn a
spouse a share in the property. In Kagga, (supra), the court pointed out that the
contribution may be direct and monetary or indirect and non-monetary. In
Muwanga v. Kintu, High Court Divorce Appeal No. 135 of 1997, (Unreported),
Bbosa, J., adopted a wider view of non-monetary indirect contributions by
following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu, [1990
– 19994] E.A. 270 . In that case, Omolo, AJA., found that the wife indirectly
contributed towards payments for household expenses, preparation of food,
purchase of children’s clothing, organizing children for school and generally
enhanced the welfare of the family and that this amounted to a substantial
indirect contribution to the family income and assets which entitled her to an
equal share in the couples’ joint property.

These cases recognize not only a spouse’s direct or indirect monetary

contribution but also a spouse’s non-monetary contributions, which enables the
other spouse to either acquire or develop the property in question.

Household property and question of gifts between spouse

It’s possible for one spouse to sell goods to the other and property will pass. Gifts
or goods are effectively sold or given by spouses to each other if such act is
accompanied with delivery of the property and the title put into the possession
of the recipient (buyer) spouse.
However, difficulty arises because spouses rarely make contracts for the gifts or
goods that they give to each other. This is because spouses will normally use the
property together such that an intention to make a gift can’t be readily inferred
from the permission to use the property in question. In this case the burden of
proof on a spouse alleging a gift or transfer of property from the other spouse is
higher than that of a stranger.
Besides its also quite difficult to prove delivery. However these difficulties arise with
regard to goods which have already been used by both spouses at home and
will continue to be used even when they are alleged to be given away as gifts.
Generally there is a need for an effective symbolic delivery of one chattel as
representing the whole. Lolke Vs Heath (1892)
However, courts are slow to infer delivery or transfer of chattel from one spouse to
another. This is because of the danger that the spouses may fraudulently allege
a prior gift of one’s goods to the other in order to keep such goods out of the
hands of the creditors.
In Gascoigne Vs Gascoigne (1918, it was held that when a husband put a house
in his wife’s name so as to avoid it being taken by his creditors, the house
belonged to the wife. The husband could not be seen or heard to say it belonged
to him because he could not be allowed to take advantage of his dishonesty.
Accordingly, such courts strictly require proof of an existing transaction involving
such gifts / property and insist on effective delivery.
Re Cole a husband said the words of gift to the wife and the issue was whether in
the family context there was a valid gift. The appeal court over turned the
decision of the trial judge who had held for the wife.
It was stated that there must be an actual delivery of the gift to the donee. The
court rejected the wife’s argument that her introduction to the house was itself
sufficient change of possession and the words of gift were enough. The wife
according to the court failed to prove actual or constructive delivery.
The case demonstrates that for a valid gift to stand, there must be delivery and
intention. The gift isn’t complete unless accompanied by something which
constitutes an act of delivery or a deed.
Bank accounts.
It follows that wives and husbands may own separate accounts. It’s also possible
that they may own joint accounts or pool from which they deposit or withdraw
money although not necessarily in the same amounts. Hence they both acquire
a joint interest therein.
However, several issues may arise with regard to shares of this interest particularly
considering the fact that they may each make different deposits and different
withdrawals.
Jones Vs Maynard (1951) 1 ALL ER 802
The husband authorized his wife to draw on his bank account which was
thereafter treated as a joint account. Further into this account was deposited
dividends from both the wife and husband’s investments.
The husband’s contribution was greater than his wife’s. the two had not agreed
on what their rights in this joint fund should be, but they generally regarded the
account as their joint savings to be invested from time to time. The husband
frequently withdrew money from these funds and made investments in his own
names. Subsequently the two separated and the husband closed the account
altogether. The marriage was dissolved and the wife sued for half share of the
account as it stood on the day it was closed, and in the investments which the
husband had previously purchased out of it.
Court didn’t inquire into how much was deposited or withdrawn by each party. It
only held that the wife’s action would succeed for the court looks at the intention
of the parties to establish a joint account.
Baisey j observed; In my judgement, where there is a joint account between the
husband and the wife, a common pool into which they put all their resources, it is
not consistent with the conception that the account could thereafter be pricked
apart and divided up proportionately to the respective contributions of the
husband and wife, the husband being credited with the whole of his earnings and
the wife with the whole of her dividends.
I don’t believe that once a joint pool has been formed, it ought to be and can
be dissected in any such manner.
In my view the husband’s earnings or salary when the spouses have a common
purpose and pool their resources are earnings made on behalf of both parties
and the idea that years afterwards the contents of the pool can be dissected by
taking an elaborate account as to how much was paid in by the husband or the
wife is quite inconsistent with the original and fundamental idea of a joint purse.
The money which goes into the pool becomes joint property. The husband if he
wants a cloth, draws a cheque to pay for it and the wife if she wants any
household keeping money draws a cheque and there is no distraught about it.
Note: There must be funds intended for the use of both spouses from which either
may withdraw money or deposit
Where both spouses contribute to the fund, the intention of common purse will be
imputed to the parties in the absence of an agreement to the contrary. But where
the fund is derived from the earnings of only one spouse, this presumption will not
arise as a general rule, but it’s a question of fact whether the account is to remain
as his/her exclusive property or whether there was an intention to establish a
common fund.
Savings from household Expenses
In Blackwell Vs Blackwell (1943) 2 ALL ER 579 on separation, the wife found to have
103 pounds as savings in a cooperative society and it was established that these
savings were balances off the weekly housekeeping allowance made to the wife
by the husband while the parties were still being together. It was contended that
this sum was her own property. Court held that it was clear that the source of the
money was the husband’s weekly allowance and in the absence of sufficient
evidence to the contrary the money was still the husband’s property.
However, lord Denning dissented in the case of Hoddinot Vs Hoddinot (1949) 2 K.B
406, where he stated that the position adopted by his colleagues as was in
Blackwell Vs Blackwell might well work an injustice for it took no account of the
fact that any savings from the house keeping money were as much due to the
wife’s skill and economy as a housewife as to her husband’s earning capacity.
In light of Article 26, Article 31 of the constitution and decisions such as Kivuit Vs
Kivuit Civil Appeal 216 and Julius Rwabibinumi Vs Hope Bahimbisomwe the
balance from housekeeping allowance must be shared equally.
Wedding gifts
Whether or not a gift belongs to one spouse alone or both of them is a question
of the donor’s intention. It is generally presumed that wedding presents in
absence of any evidence to the country from the friends of either spouse (3rd
party) belongs to that spouse alone.
In Samson vs Samson (1960)1 ALL ER 653, it was stated that there is no principle of
law that wedding presents are joint wedding presents to both spouses. If there is
evidence of intention on the part of the donor, that may determine whether the
gift belongs to one spouse or both, but if there is no such evidence, the inference
may be drawn that gifts from relatives and friends of a spouse were gifts to that
spouse property which was given to one spouse may also become the property
of both by subsequent conduct.
In Hope Bahimbisomwe Vs Julius Rwabibinumi Divorce Cause No. 4/2004, Court
ordered the couple to share the marriage gifts equally given how they had
subsequently conducted themselves in regard to the gifts.
Where a donor gifts a joint use or ownership of the spouse, the gifts will be treated
as jointly owned by the spouses.
In Kelner Vs Kelner (1939) 3 ALL ER 957, where 100 pounds deposited by the wife’s
father at the time of the marriage in a joint bank account in both spouse’s names
was ordered to be divided equally between them. Court also noted that the
spouse’s subsequent conduct may turn a gift to one of them as joint property.
Conclusion
There is no statutory law in Uganda governing matrimonial property and therefore
most of the reference is made to case law. In the case of Julius Rwabinumi vs
Hope Bahimbisomwe (Civil Appeal No. 10 of 2009) Justice Dr. Esther Kisaakye
noted that, “Before I take leave of this appeal, I would strongly urge Parliament
to enact a law that clearly defines what constitutes marital/matrimonial property
as opposed to individually held property of married persons and that spells out
the principles that courts should follow in adjudicating disputes involving division
of property upon the dissolution of marriage. Such law should of course be based
on the principle of equal treatment of the husband and wife, as is prescribed by
our Constitution”. Consequently, the marriage bill ,2024 if passed into law will
address the above concerns.

REFERENCES.
1. The 1995 Constitution of the Republic of Uganda
2. The Land Act Cap 236
3. Black Law Dictionary
4. Case Law