UGANDA CHRISTIAN UNIVERSITY
CLASS: STREAM C (B 6)
NAMES: - SERUGO LAWRENCE B21741 CKM23B11/133
- NUWE AMANYA ABRAHAM B21724 CKM23B11/116
- RUSHANGWA FRANCIS B21739 CKM23B11/131
- NYANZI RAYMOND CONRAD B21729 CKM23B11/121
- NUWENGIRA ALEX B21725 CKM23B11/117
- OKETAYOT ANDERSON B21733 CKM23B11/125
- ABER CHARLOTTE B21741 CKM23B11/003
- BATARINGAYA ABEL CKM23B11/032
- KANDARUKU JESSE CKM23B11/055
- TUSIIME RITAH CKM23B11/144
COURSE UNIT: FAMILY LAW 1
DIVORCE
The origin of the word divorce is from Latin ‘divortium’ which means to leave one’s husband or wife. It is
to end marriage with (one's spouse) by dissolution or to dissolve the marriage contract between couples. 1 It
is the legal dissolution of a marriage by a court or other competent body, a legal decree dissolving a
marriage or a separation between things that were or ought to be connected. 2 Divorce involves the
termination of marriage by a court of competent jurisdiction. The law relating to divorce is consolidated in
the Divorce Act3 and the rules4 made there under.
It should be noted that for court to pass a decree of divorce, the Petitioner should have been domiciled in
Uganda at the time the petition is presented.5
For divorce to take place, there has to be an existing valid marriage. The validity of the marriage must be
proved by the party seeking for divorce.
Bars to Divorce
What are bars to divorce?
These are factors that may fail a divorce petition. The courts inquire into the circumstances of a particular
case to determine whether or not the petitioner in any way participated in the matrimonial offence. The
rationale for bars to divorce is that the petitioner must come with clean hands and must not benefit from his
or her wrongdoing
The bars of divorce are categorised into two types, and these are;
1. Absolute bars(discretionary).
These are creatures of statute and mandatory in nature. The duty to inquire into application of absolute bars
is mandatory irrespective of whether the petition is defended or not.
2. Discretionary bars.
This where the court is given the liberty to either refuse or grant the divorce.
1. (Meriam Webster Dictionary 4th Edition Page 294)
2. (Oxford Advanced Learner's Dictionary)
3. Cap 144, Volume ……Laws of Uganda 2024.
4. Statutory Instrument 249 - 1
5. Section 2(a) Divorce Act Cap 144. for more information on domicile see Robinah Erina Kagaya
Kiyingi V Doctor Aggrey Kiyingi High courtcivil Appeal No. 41 of 2004,
Discretionary and Non-Discretionary
Understanding these categories is crucial for parties seeking a divorce and for legal practitioners navigating
family law.
1. Absolute (Non-Discretionary) Bars
Absolute bars are statutory requirements that, if met, compel the court to dismiss a divorce petition outright.
These bars are mandatory and do not allow for judicial discretion.
Absolute bars are under Section 6 of the Divorce Act Cap 144, court is obliged to satisfy itself with the
facts that are alleged and whether or not the petitioner has been in any manner accessory to or conniving at
the going through of the form of marriage or the adultery complained of, or has condoned it and also court is
obliged to inquire into any counter charge made against the petitioner.
Section 7 of the Divorce Act 2 provides for the absolute bars for divorce that shall be based on by court to
dismiss the petition.
Key Absolute Bars:
COLLUSION
It connotes an improper agreement or bargain by the spouses to the effect that one of them should bring
proceedings against the other for purpose of obtaining divorce. In Brine v. Brine, 1924 SA SR 432 Sir
Francis defined collusion to mean an agreement express or implied between the petitioner and the
respondent for the purpose of obtaining a divorce contrary to the justice of the case.
The reasonable inference drawn from the foregoing point is that the object of the agreement is to deceive or
impose upon the court by way of evidence that false witness shall be supplied to the court or material fact
withheld from it.
In Barlow v. Barlow,1937 SA SR 246 it was stated that the test applicable to determine whether there is
collusion, is for the court to find out whether there has been such an agreement in fact or not and it is a
question dependent on the circumstances of each case. The mere fact that the respondent has not defended
the
petition is not enough to constitute collusion. In Patel v. Patel, the respondent sent a lawyer and said he had
no ground for opposing the petition. Where the petition is initiated, procured and conducted especially
without being defended on the basis of an agreement between the parties and as a result relevant material is
withheld from the court with the intention of facilitating a ground for divorce, such arrangement constitutes
collusion.
Stavridis v. Stavridis, collusion may be inferred from the circumstances under which a petition is instituted.
In Gabric v. Gabric, the court noted that there was collusion in the institution of a suit for divorce when the
commencement of the suit was brought about by an agreement by the co-respondent to deposit a sum of
money for the petitioner‘s costs of suit and of obtaining evidence, and by an agreement by the respondent to
supply an address where necessary evidence would be obtained, and the deposit and information were in
turn brought about by an undertaking on the part of the petitioner not to seek custody or damages.
It is ordinarily enough to constitute collusion where the agreement between the parties prevents the
respondent from asserting material facts which amounts to withholding substantial evidence from court. In
Hubbard v. Hubbard, the court noted that there had been a bargain between husband and wife that the
husband would not present his side of the facts so that an intended result was that the court would be
deprived of relevant evidence which might affect its conclusion. The court further noted that this constituted
to collusion with intent to cause a perversion of justice. Where defence is abandoned for a consideration
there is collusion as stated in Grose v. Grose, collusion would arise where parties agree not to urge a
substantial and bonafide defence which would by virtue of that agreement, deprive the court of an
opportunity of fulfilling its statutory functions of determining the issues involved and which would lead to a
decree or order being improperly obtained.
In Shaw v. Shaw, it was observed that where there is an agreement for consideration to withhold evidence,
which if believed, would establish that the court had no jurisdiction to hear the suit, then that agreement
would seem to be collusive. It is also important to distinguish between the two types of collusive bargain. A
collusive bargain which in the ordinary meaning of the word is corrupt, remains an offence legally and
morally e.g. procurement of a decree upon a false case or improper pressure by financial bribes or threats
upon the spouse to bring a suit or abandon a defence.
The other collusive bargain depicted in Nash v. Nash, is a collusive bargain which represents an honest
negotiation between the parties which is not intended to deceive the court either by putting forward false
evidence or suppressing or withdrawing a good defence.
Colbec v. Colbec [1961] EA 431 wife petitioned for divorce on the grounds of cruelty. Husband filed a
reply but instructed his counsel not to defend the case because he didn‘t want his wife to be subjected to
cross examination. It was held that there was no collusion.
Where the petitioner is proved to have colluded in presentation of the petition, section 7 of the Divorce Act
Cap 144 empowers the court to dismiss the petition. ―The petition shall be dismissed if the court is
satisfied that the petition is presented or prosecuted in collusion with either the respondent or co-respondent.
Churchward v. Churchward the petitioner declined to divorce his wife who wanted to marry the
correspondent until she had made a settlement in favour of the children of the marriage and she agreed to do
so since she wanted to be released from the marriage, deposited some amount and the petitioner then filed
his petition. It was held that this amounted to collusion.
Condonation
This refers to the forgiveness of a matrimonial offense (e.g., adultery) by one spouse, followed by resuming
cohabitation. If one spouse forgives the other for committing adultery and continues living together,
they cannot later seek a divorce on those grounds.
Condonation is defined in the case of Mugonya v Mugonya (1975) HCB 295, 4 in this case, condonation
was defined as a state of forgiveness and reinstatement to the former marital status where both parties forget
the past and reconcile. In such a scenario, the petitioner forgives their spouse for the marital offence they
had committed and after forgiveness, the petitioner cannot bring the same ground as a ground for divorce. In
the case of Cramp v. Cramp (1920) P. 158, it was held that a husband who has sexual intercourse with his
wife after knowledge of her adultery must be conclusively presumed to have condoned the offence. Mere
forgiveness does not amount to condonation.
For condonation to exist the forgiveness must be followed by cohabitation and the restoring of the offending
party to their former position as husband or wife.
In the case of Crocker v. Crocker (1921) P. 25 where a soldier who was serving overseas during the war
wrote to his wife offering to forgive her for having committed adultery when he was away. The wife
accepted the offer but on his return home he changed his mind and petitioned for divorce. It was held that
there was no condonation because there was no reinstatement. Therefore, reinstatement to the original
position of the marriage is very key for condonation to be accepted.
Section 9 of the Divorce Act Cap 144 provides that Adultery shall not be deemed to have been condoned
unless conjugal cohabitation has been continued or subsequently resumed.
Connivance:
This involves one spouse actively encouraging or allowing the other to commit a matrimonial offense.
Gipps v Gipps (1861-1873) For instance, if one spouse knows about the other's infidelity but does nothing to
stop it, they may be found to have connived at the offense, barring them from seeking divorce based on that
infidelity.
The Black’s law dictionary defines connivance as one spouse's corrupt consent, express or implied, to have
the other commit adultery or some other act of sexual misconduct. In other words it is one spouse's act of
encouraging the initiation or the continuation of an act that can amount into a matrimonial offence.
The other spouse is an accessory to the matrimonial offence. If the court is satisfied of the evidence that the
petitioner has been an accessory or has connived at the offense, then it has to dismiss the petition.
Churchman v Churchman (1945) p44- the principles as to what constitutes connivance were laid down. “It
is the essence of connivance that it precedes the event and generally speaking the material event is the
inception of the adultery and not its repeatition although connivance at the continuation of an adulterous
association may show that the party conniving must be taken to have done so at first. In this case it was
stated that the material event is the inception of the adultery, that is when the petitioner first knew of the
adulterous association. He must have connived for the adultery to happen.”
The above principle was reiterated in Maddock v Maddock (1958) O.R 810. In Godfrey v Godfrey and Wall
[1964] 3 ALL ER 154, the husband’s petition for divorce on grounds of adultery was denied because he had
not shown that his initial connivance was not the effective cause of the subsequent adultery. Similarly in
Manning v Manning and Fellows v Fellows [1950] 1 ALL ER 602, court found that adultery was clearly
promoted and encouraged by the petitioners, Mr. Manning and Mrs. Fellows. Douglas v Douglas [1950] 2
ALL ER 748- where a man watches his wife and is seeking to discover a matrimonial wrong, he is neither
promoting nor encouraging it, but is seeking to secure the evidence to mitigate impunity.
Discretionary Bars
Discretionary bars allow judges some way in deciding whether to grant a divorce based on specific
circumstances surrounding the case. Unlike absolute bars, these do not automatically prevent a divorce but
may influence the court's decision.
Discretionary bars to divorce refer to circumstances that allow a court some flexibility in deciding
whether to grant a divorce. Unlike absolute bars, which mandate a dismissal of the petition if certain
conditions are met, discretionary bars enable the court to consider the specifics of each case and make a
decision based on broader considerations, including the welfare of any children involved and the
potential for reconciliation.
Key Discretionary Bars:
Lack of Reasonable Arrangements for Child Support:
If there are children involved, the court may delay or refuse to grant a divorce until it is satisfied that
adequate arrangements have been made for their support. This ensures that children's welfare is prioritized.
If a couple with children seeks a divorce but has not made any arrangements for child support, the court may
postpone granting the divorce until satisfactory arrangements are established. This reflects the court's duty to
protect children's interests.
Under Section 11 of the Divorce Act, courts are required to ensure that reasonable arrangements for child
support have been made before granting a divorce.
Unnecessary and improper delay is another discretionary bar.
Prince v Prince [1920] KLR 21- Court took into consideration the poverty of the petitioner, the long drawn
out correspondence and the difficulties of communicating owing to war and found the delay reasonable.
Binney v Binney [1893] ALL ER 480- the husband failed to initiate divorce for 20 years. When he
eventually petitioned for divorce to be free to marry another woman, the petition was dismissed for
unreasonable delay.
Conclusion
The discretion must be exercised judicially not arbitrarily, taking into account the rights of the parties. Blunt
v Blunt [1943] 2 ALL ER 76- the court established the considerations taken into account in exercising its
discretion when a petitioner is guilty of adultery. These include; a full statement of the facts upon which the
petitioner relies, the position and interest of the children of the marriage, the balance between the sanctity of
marriage and maintenance of a union which has utterly broken down. Mrs. Ruhara v Ruhara [1977] HCB
86- court dissolved the marriage even though both parties committed adultery. Kironde v Kironde and
Moses Zizinga (Civil Divorce Cause No 06 of 2001)- court held that while both the wife and husband
admitted adultery, it did not amount to connivance, condonation or collusion. The court appreciated the fact
that the parties agreed to settle the case expeditiously, thus saving court’s time and money instead of having
protracted proceedings. Dixson v Dixson [1952] 1 ALL ER 910- where the petitioner conduces adultery, the
court has the discretion to dissolve the marriage.
Relevance of bars to divorce
Family (Mediation) Rules were enacted. They require that before any matter is heard by court, the parties
are obliged to go through mediation. Many divorce cases are being settled by signing of consent judgements
on the basis that the marriage has irretrievably broken down. A bar to divorce cannot save a marriage. In
conclusion, bars to divorce are largely irrelevant.
