COURSE: LLB 2:1

COURSE UNIT: FAMILY LAW

LECTURER: MR
GROUP 7 MEMBERS

S/ NAME REG NO SIGN

N

1 CHANGU AGNES BANDA 2023-08-20590

2 LAKER PHIONAH NYOR 2023-08-22745

3 ATUKWASE DANIELLA 2023-08-21223

4 NAMAYANJA EVELYNE 2023-08-16543

5 MAZIMA IVAN 2023-08-21775

6 ACHOBO BABRAH 2023-08-21197

7 AKWIR JULIANA 2023-08-21869

8 TWINOMUGISHA ANITAH 2023-08-19478

9 EDEMA JONATHAN 2023-08-21514

10 TUMUKUNDE MICHEAL 2023-08-20101

11 BARIGYE CONALD 2023-08-21600

12 ANKUNDA DERRICK 2023-08-22780

This refers to the property owned by people who are legally married to each
other and them
Include family house and everything in it, as well as anything else that the
couple owns which may
Include their cars, clothes, furniture, funds in their bank account among
others.
In the case of Mowing v Kinta, HCDA No. 135 of 1997, Bbosa J. noted that
matrimonial property is
that which each spouse should be entitled to, that property which the parties
choose to call home and
which they jointly contributed to it.
Matrimonial Property System
These are set rules and regulations which determine who owns property and
who owns debts,
whether a spouse can sell or give out things to other people, and how the
property should be shared out
when the marriage ends.
It is also concern with;
Whether the spouse can get a credit card and whether a spouse can bring a
court case.
Under common law, it was provided that, all property in the matrimonial
home belonged to the
husband and a wife had no right to claim for it, in the case of Lailai
Ghinamouze v The Queen, court
pointed out that all charter in the matrimonial home are naturally presumed
to be the property of the
husband. It was further emphasized in the case of Mawji v R, where court
held that, there's a natural
presumption in the absence of evidence to the contrary that, property in the
matrimonial home is that
of a husbanThis refers to the property owned by people who are include their cars, clothes,
furniture, funds in their bank account among others.

This refers to the property

owned by people who are
legally married to each
other and they
include family house and
everything in it, as well as
anything else that the
couple owns which may
include their cars, clothes,
furniture, funds in their
bank account among others
MATRIMONIAL PROPERTY
Matrimonial property refers to the property owned by people who are legally married to each
other like the family house and everything in it, as well as anything else that the couple owns
which may include their cars, clothes, furniture, funds in their bank account among others. In
the case of Muwanga v Kintu1. It was noted that matrimonial property is that which each
spouse should be entitled to, that property which the parties choose to call home and which
they jointly contributed to it.
In addition, matrimonial property division in Uganda has not yet been clearly defined by
statutory law. However, courts have provided a starting point for determination of what
constitutes matrimonial property. Justice Esther Kisakye started in the Rwabinumi case that the
property to which each spouse should be entitled to be that property which the spouses call
home and they jointly contributed to. Marriage is defined in the case of Hyde V Hyde as a union
between man and woman at the exclusion of others.
Matrimonial Property System
These are set rules and regulations which determine who owns property and who owns debts,
this is based on whether a spouse can sell or give out things to other people, and how the
property should be shared out when the marriage ends. Under common law, it was provided
that, all property in the matrimonial home belonged to the husband and a wife had no right to
claim for it. In the case of Lailai Ghinamouze v The Queen2, court pointed out that all chattel in

1
Muwanga v Kintu, HCDA No. 135 of 1997, Bbosa J.
2
Lailai V The Queen (1956) 23 EACA 609
the matrimonial home are naturally presumed to be the property of the husband. It was further
emphasized in the case of Mawji v R, where court held that, there's a natural presumption in
the absence of evidence to the contrary that, property in the matrimonial home is that of a
husband.
Originally, women could not own property in their own names but only used them and the
courts were very strict on women claiming over marital property during dissolution of marriage
mostly due to a woman’s adultery act. Section 26 of the Divorce Act, states that when a decree
of dissolution of marriage or judicial separation is pronounced on account of adultery by the
wife, and the wife is entitled to any property, the court may not with-stand the existence of the
disability of overture, order the whole or part of the property to be settled for the benefit of
the husband or for the children of the marriage or both.
Today in modern law, the legal position that women cannot own property independently has
changed and they can now acquire property independently regardless of their marital status
and that property is fully under their custody. Article 31(1)3 provides that a man and a woman
are entitled to equal rights at marriage, during and after marriage, as well as in its dissolution.
Article 26 further provides that every person has a right to own Property either individually or
in association with others, women have their own rights and entitlement to property. Section
39 of the land Act cap 227 prohibits transfer of family land without the spousal consent. It
further prohibits the sell, exchange, mortgage and lease of family land without the consent of
the woman or wife.
The question of whether property should be divided equally on divorce depends on the
individual circumstances of the case. In Gissing V Gissing, the House of Lords stated that it is
not in every case that the parties hold equal shares
In the case of Alice Okiror & Another v Global Capital Save4, court held that in the Absence of
written spousal consent to mortgaging the property in the issue for the amount stated therein,
the mortgage created over it was void. Equally, In the case of Uganda v Jeninah Kyanda, the
high court noted that, a woman regardless of her marital status can own property in her own
right. Therefore, whether or not the woman is married, she can own property in her names. In
the case of Moonlight Ssengooba v A.G, it was provided that the ownership of property by
women as per the English laws and in judgment, court held that the English Married women's
Property Act of 1882, which allowed women to own Property in their own right was applicable
to Uganda.
However, there are several issues that may arise concerning property in marriage in different
dimensions. There's property that can be acquired jointly by spouses for joint use while others
may be acquired and used separately. It may be property separately bought and the other has
no interest in it. It may also be property in which the title is vested in one party but the other
3
Article 31 of the 1995 Constitution of Uganda
4
Alice Okiror & Another v Global Capital Save 2004 & another
carries out improvements on that property using his/her income. It's these dimensions of
property that have given rise to the various issues particularly on how such property may be
shared in the event of separation or divorce
In the Supreme Court Case of Julius Rwabinumi v Hope Bahimbisomwe5, court stretched out
that, the contribution may be direct (monetary) or indirect (non-monetary). Also in the case of
Kivuitu v kivuitu, court held that, a wife does contribute to the family in a thousand other ways
including preparation of food, payments for household expenses, purchase of children's
clothing organizing for assets which is referred to as unpaid care work, which would entitle her
to an equal share in the couple's joint property.
In reference to the case of Mifumi (u) ltd &12others v Attorney General6, court observed that a
woman's contribution in a marriage cannot be equated to any sum of money or property,
therefore giving her a right to own property in that home. Determination to how much a wife is
contributing to a spouse's share in the joint property. Equally in the case of Kagga v Kagga7, the
judge, Mwangusu J, noted that "our courts have established a principle which recognise each
spouse's contribution to acquisition of property and this contribution is monetary or indirect
where a spouse offers domestic services, when distributing the property, its immaterial that
one of the spouses was not as financially endowed as the other.
In the case of Muthembwa v Muthembwa, court held that the issue of whether the wife had
made contribution to the acquisition of the suit’s properties was a question of fact. It was
impractical 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.
In the case of 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 at the dissolution of
the marriage.
In the case of Sempiga v Sempiga Musajjawaza, High Court Divorce No. 007
of 2005, where court
gave/awarded the wife, among other things a 50% share in a farm
measuring 154 acres of land.
Property acquired before marriage by the party(ies)
This concerns with property obtained married couples individually either
before them getting married or
while in marriage. In the case of Ambayo Joseph Waigo v Aserua Jackline,
court observed that what

5
Julius Rwabinumi v Hope Bahimbiomwe CA No 10 of 2009
6
Mifumi (u) ltd &12others v Attorney General & another Constitutional Appeal No. 2 of 2010
7
Kagga v Kagga, High Court Divorce Cause No. 11 of 2005
amounts to a " matrimonial property " depends on the circumstances of each
case. If the intention of the
parties was having the property as family home, then the roles played by
each of the party before
getting married amounts to matrimonial property.
However, in the case of Benard v Joseph(1982) 3 ALL E.R, court held that
where 2 people in an unofficial
domestic partnership jointly purchased a house and lived there like a
married couple, each person was
entitled to a beneficial interest in the house and that the apportionment of
each shares was to be done
using the principles for a married couple, court further held that, it was
necessary to determine the level
of commitment of each party/individual similar to that of a married
coupleaccounts for purposes of determining the respective contributions of the parties to the
management ofa home, there arose a rebuttable presumption of an equal contribution.In the
case of Mayambala v Mayambala, High court Divorce cause No 3 of 1998, the wife's interest
the matrimonial home was established at a 70% share at the dissolution of the marriage.
Property acquired before marriage by the party(ies)
This concerns with property obtained married couples individually either before them getting
married or while in marriage. In the case of Ambayo Joseph Wago v Aserua Jackline, court
observed that what amounts to a "matrimonial property" depends on the circumstances of
each case. If the intention of the parties was having the property as family home, then the roles
played by each of the party before getting married amounts to matrimonial property.
However, in the case of Benard v Joseph8, court held that where 2 people in an unofficial
domestic partnership jointly purchased a house and lived there like a married couple, each
person was entitled to a beneficial interest in the house and that the apportionment of each
shares was to be done using the principles for a married couple, court further held that, it was
necessary to determine the level of commitment of each party/individual similar to that of a
married couple
In Muwanga v kintu, it was stated that matrimonial property is understood differently by
different people. There may be property which may be acquired separately by each spouse
before and after marriage. And in determining whether such property amounted to
matrimonial home, the law provided for the husband and the wife an intention to create a trust
for each other by way of inference from their conduct and the surrounding circumstances.
Section 2 of the Mortgage Act 8 of 2009 defines matrimonial home as a building, part of a
building in which a husband and wife or as the case may be, wives and their children, if any
ordinarily reside together.
Household property and gifts between spouses during marriage.

8
Benard v Joseph(1982) 3 ALL E.R
It’s possible for one spouse to sell goods to the other or to give gifts to each other but this must
be accompanied by delivery of the property and the title to the party being sold the property or
being gifted. In Re Cole (1963) ALL ER 435, a husband completely furnished a house before his
wife set foot in it. He gave all of it to his wife. The furniture remained insured in the husband's
name. Court held that, the gift of chattel is not complete unless accomplished by something
which constitutes an act of delivery as a change of possession.
Bank accounts;
Wives and husbands may have separate or joint accounts from which they deposit/save, or
withdraw money though not necessarily in equal proportions but the couple can withdraw or
save at will in this account and as a result, they both acquire a joint interest in the account. In
the case of Jones v Maynard court held that, the intention of the parties was to constitute a
pool of their resources in form of a joint account.
Savings from household expenses.
In the case of Blackwell v Blackwell, it was noted that, the source of this money was the
husband's weekly allowance and that was sufficient in the absence of any evidence to the
contrary that this money was still the property of the husband.
Wedding gifts.
It is generally presumed that the wedding presents in the absence of any evidence to the
contrary form the friends of either spouse (third party) belongs to that spouse alone. In the
case of Samson vs. Samson, it was held that, there is no principle of law which provides that
wedding presents are joint wedding presents to both spouses. The development of the law
governing matrimonial property clearly reflects the development of the status of a wife from
being a subservient member of the family to being equal head status hence a shift from
patriarchal ownership of matrimonial property to joint ownership of the same property.
In conclusion, the law relating to matrimonial property has been a shift from male or patriarchal
ownership of matrimonial property to a joint ownership over the same. The development of
the law regarding matrimonial property clearly reflects the development of the status of the
wife from being a subservient member of the family to becoming its co-equal head. 9

9
Lowe & Douglas, 2007 pg 127