Discriminatory family laws: towards the adoption of the Marriage and Divorce Bill?

Under current legislation, which is fractured and piecemeal8, there are no essential requirements common to all marriages, whether civil, religious or customary, leaving significant gaps in protection. For example, although the Ugandan Constitution provides that the minimum legal age for marriage for both men and women is fixed at 18 years, according to customary laws marriages are frequently arranged for minors, especially in rural areas. Furthermore, polygamy is authorised under customary and Islamic laws and women in polygamous relationships have no protection in the event of dissolution of the union. In some ethnic groups, custom also provides for men to “inherit” the widows of their deceased brothers (levirat), which is not prohibited by law.

Under the Divorce Act, stricter evidentiary requirements apply to women than those that apply to men; women are required to show not only that their husbands committed adultery, but also provide evidence for additional grounds for divorce such as bigamy, sodomy, rape and desertion.

This provision has been declared unconstitutional by the Constitutional Court (see supra), but the law has not been reformed. Concerning custody of children, although the Status of Children

Act 1996 provides that both parents are responsible for their children, under customary and religious laws men have sole parental authority.

2.1 The Marriage and Divorce Bill

The main purpose of the Marriage and Divorce Bill is to bring existing legislation relating to marriage, separation and divorce into compliance with Article 31 (1) of the Constitution of Uganda, which provides that men and women are entitled to equal rights in matters relating to marriage and its dissolution, and with Uganda’s international obligations.9 The Marriage and Divorce Bill has been on the table for over 14 years, yet despite strong advocacy campaigns led by human rights and women’s rights NGOs, the bill is yet to be adopted by parliament.

The Marriage and Divorce Bill does not introduce entirely new concepts to those included in existing Marriage and Divorce laws. However, it sets minimum standards for all regimes of marriage provided for under the law, supplemented by separate provisions governing the conclusion of Christian, Hindu, Customary and Bahai marriages. The draft law includes a number 8. Existing family laws include: the Marriage Act, Cap 251 ; the Marriage of Africans Act, Cap 252; the Divorce Act, Cap 250; Marriage and Divorce of Mohammedans Act, Cap; Hindu Marriage and Divorce Act, Cap 250; Customary Marriage (registration) Act, Cap 248.

9. Myths and facts on the Marriage and Divorce Bill, a publication of Uganda Women’s Network (UWONET), May 2010. Women’s rights in Uganda: gaps between policy and practice / 11of provisions that would significantly increase protection for women’s rights in accordance with Uganda’s international obligations.

In 2009, a “Domestic Relations Bill” was presented to parliament. After protests from some groups within the Muslim community, which opposed provisions they considered to be contrary to Sharia law, including the prohibition of polygamy, the Domestic Relations Bill was withdrawn from parliament and the text was divided into three separated Bills.

The first part, dealing with domestic violence, was eventually adopted as the Domestic Violence Act, in 2010 (see infra). The second part, the current Marriage and Divorce Bill, was scheduled to undergo two parliamentary readings in the last parliament. However, the second reading was cancelled for lack of quorum. It is now on the list of 23 Bills that have been sent to the new parliament for consideration. This version of the Bill does not apply to Muslim marriages. The adoption of third separate law, the Administration of Muslim Personal Law, has been put aside for later agreement.

2.3 Increased protection but some significant gaps

The Marriage and Divorce Bill fixes the minimum legal age for marriage for both sexes at 18, grants women the right to choose their spouse and the right to divorce spouses for cruelty and prohibits the practice of “widow inheritance”. It also defines matrimonial property, provides for equitable distribution of property in case of divorce and recognizes some property rights for partners that cohabit.

However, the draft does not prohibit polygamy. Nor does it prohibit the practice of paying a dowry or “bride price”, although it does provide that such payments are non-refundable. These two provisions were seen as a bargaining chip by proponents of the bill to strike a compromise on the rest.

Some of the main advances also constitute the main points of contention:

• The ownership and division of property: The law defines marital property and the rules applying to the ownership of property acquired during marriage, including the notion of spousal contribution towards improvement of matrimonial property. These provisions are aimed at entitling women to their fair share of property in marriage and upon divorce. They have been criticized by some opponents to the bill, including some parliamentarians and religious leaders, as “unbalanced, favouring women”, and “encouraging women to be hostile towards men and accumulate wealth”.

• Cohabitation: Through this provision, the draft law aims to provide some protection to couples who cohabit without being married, representing the majority of Ugandan couples. The draft law provides for the possibility to enter into an oral or written agreement relating to property. This provision only relates to cohabitation and does not apply to married couples.

However, this point is unclear to many, including within the NGO community. The law is perceived by many, including some faith-based leaders, to be promoting cohabitation versus marriage, or as recognising cohabitation as a form of marriage.

• Marriage gift or dowry: (still commonly called ‘bridal price’). The draft law does not prohibit the marriage gift or dowry but provides that it is non-refundable. This 12 / Women’s rights in Uganda: gaps between policy and practice is seen as key to breaking the financial constraints that often prevent a woman from being able to separate or divorce her husband. The term proposed by the Bill, ‘marriage gift’ is problematic to some, including members of Parliament, who have difficulties abandoning the commonly used term ‘bridal price’.

As the draft law does not apply to Muslim marriages, many women in Uganda - where an estimated 12% of the population are Muslims - are excluded from its application, unless they decide at the time of marriage that the law will apply to them, by contracting a civil marriage.

It is concerning that Muslim women will not receive the same protections of their rights. The creation of different laws for different groups violates international human rights norms and international law and in particular the principle of non-discrimination, which is also enshrined in the Ugandan Constitution. The obligation on states to protect women from discrimination applies to all women, irrespective of their religion.

Several persons interviewed by the FIDH/FHRI mission, including the Minister for Gender Equality and Labour, Hon. Syda Bbumba, and members of the Law Reform Commission, considered that the Bill still needed to gather sufficient support from religious leaders and at community levels. The Minister for Gender Equality and Labour considered that, before further consideration of the bill, further awareness-raising actions and advocacy are required, targeting faith-based organizations and rural communities, which would serve as a basis for defending the bill before parliament.

All those interviewed admitted that, in addition to resistance from grassroots, religious and community leaders, the level of resistance among Parliamentarians themselves is strong. Some suspected that Parliamentarians resistance related to their personal situation, which they felt could be affected by the Bill, including the property and cohabitation provisions.

Other key players such as FIDA-U and Uganda Women Network (UWONET) considered that the consultative phase had been sufficient, and that the Bill should be tabled early in 2012. In particular, they felt they could rely on key support by the new female Speaker of Parliament, who had given assurances to reschedule a second reading of the Bill. In order to contribute to countering some of the negative public perception of the Bill, UWONET, a lead advocacy organization, proposes changing the name of the Bill to eliminate the reference to Divorce.