SPLIT. There is often a lot at stake whenever a couple decides to divorce. Child custody, children, finances, and sharing of property, among other things. Stories are often told of divorced women falling prey to unfair divorced settlements. Esther Oluka explores the financial and property rights women are entitled to after divorce and delves into the nitty gritties of divorce.
When couples make vows, they promise to love and to hold until death does them part. However, for some couples, marriage may not be a happily ever after affair. Along the way, irreconcilable differences may arise and force the couple to part ways in what is commonly known as divorce. The underlying factors differ from one couple to another.
This year alone, Uganda has experienced a wave of divorce cases involving influential people in society. Notable among these divorce cases is one of the Democratic Party president, Nobert Mao and his ex-wife, Naomi Achieng Odongo. The couple decided to have their marriage dissolved on May 27, 2019 after the judge ruled that it had irretrievably broken down, with no hope of redeeming it. Mao and Achieng had been married for 16 years.
Another famous ex-couple whose separation drew public attention was that of Prof Gilbert Bukenya, the former vice president of Uganda and his wife, Dr Margaret Mary Musoke.
Musoke ran to the Family Division Court on May 7, 2019 and filed for divorce, accusing Bukenya of infidelity. The couple had been married for 45 years.
What is divorce?
Divorce is where a married couple decide to permanently separate from each other, says Muhammad Kikomeko, a lawyer and partner with KM Advocates and Associates. The said separation is done through rules or values of marriage type, through which the union was celebrated.
“For example, for a couple that made vows in a church marriage, celebrated before a religious leader of a licenced church, divorce is done through a petition for divorce in the courts of law,” Kikomeko says.
He says that the same applies to civil marriages celebrated before a registrar. “The affected party will petition court for divorce on grounds of adultery, cruelty, or desertion for a period of more than two years. After filing with court, copy of the petition will then be served to the accused person.”
Upon successful proof of grounds for divorce pleaded in the petition, the court will grant a decree Nisi, a period of six months to see whether the couple can reconcile. In the event that the couple does not reunite within the stated period of time, court will have no option but to permanently dissolve the marriage.
On the otherhand, for Muhammadan unions, Kikomeko says that in the event of dissatisfaction by the husband, he can lodge talaq (a form of divorce petition initiated by men in Islam) on three separate times directly to the woman.
“Each talaq is given every month and on the final third month, the woman will have to leave as stipulated by Islamic law,” he says.
In the event of dissatisfaction by a woman, she will lodge a noshuza (a form of divorce petition initiated by women in Islam) before area sheikhs, who will then call her husband for reconciliation. In the event that resolution fails, parties will be separated.
Sharing of property
No doubt, divorce is a difficult time for both men and women. Before or during the process of divorce, Isaac Walukagga, a lawyer and partner at MMAKS Advocates says, couples should seek services of an advocate who will advise them on how to dissolve the marriage.
“On issues regarding property, the aggrieved parties may specifically engage the services of a legal practitioner, one conversant with family law,” says Walukagga.
In circumstances where one cannot afford an advocate, they may engage the family unit at police for advice.
When it comes to sharing property, women specifically, find it difficult to provide proof of entitlement to the couple’s properties and finances.
“The party in whose name a property is not registered is usually required by the law to prove contribution in the acquisition or development of the property,” says Walukagga.
Challenges women face
The other obstacle women may face is quantifying their contribution to the family property.
“Previously, courts interpreted a housewife’s (stay-at-home) contribution in the context of taking care of a home and children. However, today couples employ nannies who do most of the work. So, if a couple decides to divorce, and the wife insists on having a share of the marital property, questions may arise as to whether she is indeed entitled to property, considering that she has also been gainfully employed,” Walukagga adds.
The assessment includes custody and taking care of the children, joint bank accounts, buildings, and other property. If the couple had a joint account, court will be interested in knowing whether both partners were making significant deposits during the marriage.
“That is why it is very important for the estranged couple to engage an advocate to ensure civility while dealing with the divorce process,” Walukagga emphasises.
Why are women victims?
The advocate or even the courts of law determine the eventual ruling or judgment. For example, in the case of Mao and Achieng, court ordered Mao to hand over to Achieng all his interest and property comprised of Plot 14 Kitgum road in Gulu Municipality. He was also ordered to handover a motor vehicle, registration number UAH 437Z to Achieng as requested in her petition filed in 2017.
On the other hand, court ruled that Mao would continue staying in his house located on Plot 58, Valley Drive in Minister’s Village, Ntinda, for a period of three years for the interest of their children. Part of the judgment also included an instruction, directing the separated couple to transfer the property in the names of their children.
There are occasions when women fall prey to unfair court settlements. Caroline Jean Adyero, an advocate of the High Court in Uganda, believes that women are often victims of unfair divorce settlements because of their ex-husband’s egoistic and selfish nature.
“You are aware that court works with evidence presented to make decisions. During divorce, women in relationships with such men are likely to be treated unfairly while dividing property,” she reveals.
Adyero advises women not to wait until divorce cases are filed to start looking at possible considerations.
“As a woman, ensure that all properties acquired jointly during marriage have your name and that of your husband.” This, she says, hastens divorce proceedings and helps court determine the contribution of both partners to marital property with ease.
The prenuptial debate
Sometimes, when couples want to save themselves from disagreements in case divorce arises, they consider a prenuptial agreement commonly known as a prenup.
Joseph Arocha, an advocate with Equity Bank Uganda Limited’s legal team, terms a prenup as an agreement made between a couple that intends to get married.
It points out their respective rights that should not be affected by the marriage, like property rights.
“Lawyers will advise parties on the pros and cons of entering into such an agreement. It is, therefore, advisable that such an agreement is done by a professional lawyer.
“Many people assume that prenups are for the rich. Any couple can agree to enter into a prenup as long as they agree on various rights and obligations,”Arocha explains. Although some individuals think prenups can affect a marriage, Arocha thinks otherwise.
“Prenups do not necessary affect the marriage because by the time the parties enter into a marriage after signing a prenup, they understand the consequences of what they signed.”
“This is because they are given advice on the same, before they actually sign,” he says.
According to Arocha, prenup is seemingly a hard topic of discussion for many couples but it could be one of the best options, especially if partners do not want to be caught up in the messy issues that arise from divorce.
Avoid secret ownweship of property
Caroline Jean Adyero, an advocate of the High Court in Uganda, believes that women should be prepared for any eventuality including divorce “When you are married, ensure that all property acquired jointly during marriage are both in your name and that of your spouse.This prevents unnecessary delays during divorce process,” she says.
Adyero advises women to secure all personal property acquired during the marriage by duly registering them in their own names or have some kind of evidence (documentation) that proves ownership.
Regarding the question of whether women should reveal any of their personal investments to the man they are intending to marry, Muhammad Kikomeko, a lawyer and partner with KM Advocates, says it is better if a woman declares either her assets or properties.
“This prevents unnecessary tension. When the man finally gets to know about the undiclosed property during the course of marriage, confrontation may actually lead to separation,” Kikomeko says, adding, “A successful marriage is based on trust and openness.”
If a woman is worried about anything, Kikomeko advises that she engages in an open discussion with the man before the marriage and should suggest how she would like her personal investments to be handled during the course of marriage.
“This would be a good case for working out a prenuptial agreement. Unfortunately, many women fear to be judged by the men they are intending to settle down with,” he says.
Kikomeko cautions women against the idea of women secretly owning personal investments in marriage, arguing that this is a recipe for tension, in case the partner finds out. He advises women to openly tell their partners about independent property made in the course of the marriage.
Should couples do an equal (50/50) split after a divorce?
Naome Kenyegamo Kirunda,
“It depends on a number of factors. For example, if court decides that the woman bears sole custody of the children, then, I think it is only fair that she is allocated more finances and property than the man.”
Godfrey D. Ouma,
“It is only fair that marital wealth is distributed equally after a couple divorces. It does not matter whether a woman found an already established man. When you decide to marry someone, you vow to share everything including property. Marital wealth is yours both, hence, sharing equally. That is the matrimonial law.”
Jimmy Odoki Acellam,
Mental health advocate
“It depends on how long the couple has been married. For example, if the couple has spent many years together, then equal distribution of wealth can be considered. Also, I think the distribution should depend on how much parties have contributed towards the marriage.”
“In the case where a man and woman meet, get married, contribute equally to their wealth and later divorce, they should then consider equal sharing because they have struggled to get their assets together. However, if a woman marries an already established man or vice versa, an equal share should not be considered. It would be unfair to award someone equal share of wealth they have not worked for.”