Rethinking Divorce In Modern Marriages

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On 18th August 2023, the media was awash with the decision of Hon. Justice John Eudes Ketirima in the case of Zedekiah Karokora versus Kellen Karokora vide HCFD Divorce Cause No. 20 of 2020 that relates to a petition for divorce.

The Applicant applied to the Court for a decree dissolving his 43-year-old marriage with the Respondent on grounds of cruelty and desertion. The petitioner contended that since 1999 the Respondent denied him conjugal rights, and there was no effective communication between them since 2000.

That he was further subjected to abuse and humiliation by his wife before their children and guests which acts adversely affected the Petitioner’s health by causing him depression, nervousness and he has since developed hypertension and diabetes.

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While relying on Section 4 of the Divorce Act, Cap 249 (hereinafter called the Act) in his Judgment, the Honourable Judge declined to grant the Petitioner divorce orders on the basis that cruelty and desertion must be coupled with adultery for a Petitioner to succeed.

This decision has sparked a public (social media) discourse about the court’s reasoning and application of Section 4 of the Act. Some have rightly argued that the Honourable Judge has set a precedent regarding the grant of divorce orders which is inconsistent with decided cases of even superior courts including Dr. Specioza Wandira Kazibwe versus Engineer Charles Nsubuga Kazibwe Divorce Cause No. 3 of 2003 and the recent decision in Rebecca Nagidde v. Charles Steven Mwasa CACA No. 160 of 2018 that held inter alia that it is sufficient for either spouse to allege one ground for divorce as set out in Section 4 of the Act for a petition or cross petition to succeed.

 

It is true that the Judge in this case cited and considered the provisions of Section 4 of the Act as deposited by the legislature in 1904 to decide to dismiss the petition. Section 4(2) of the Act states the grounds for divorce inter alia that a wife (now read as “a spouse,” per the decision of Uganda Association of Women Lawyers versus Attorney General, Constitutional Petition No. 2 of 2002) may apply by petition to the court for the dissolution of her (his) marriage on the ground that since the solemnization of the marriage a spouse has been guilty of … adultery coupled with cruelty; or adultery coupled with desertion, without reasonable excuse, for two years or upwards.

It is clear from the wording of the statute that the framers intended that cruelty and desertion were not stand-alone grounds for divorce but they have to be tagged along adultery. This must have been the basis of the Honourable judge’s decision which is prima facie right.

However, just like other people have argued while making a judicial decision regard is made to the doctrine of stare decisis which is a Latin phrase meaning ” let the decision stand or to stand by things decided.”

It simply means that courts and judges should honor precedents or court decisions from prior cases. This is the foundation of the doctrine of precedent in our legal system to ensure consistency and uniformity of court decisions.

It is also the basis for a type of law called judge-made law on the premise that once a precedent is set then it becomes law, binding the court that made it and all courts inferior to it. However, a higher court may either uphold the precedent or depart from it and set a new position on the matter.

In the instant case, whereas the Judge rightly followed the grounds for divorce as stated in the Act, I believe that he decided the case per incuriam by overlooking the already set precedent concerning the position of the law while considering the grounds for divorce.

The Honourable Judge would have reached a different decision had he considered each ground as stand-alone and independent from the others.

End Marriage as a social contract

Brandon Stover writes that marriage appears to be an agreement, a social contract, between two people to continue ongoing negotiations about how each person will show up to better themselves, each other, and the relationship.

Each individual enters the agreement under the belief that this union is more beneficial to each individual’s life than what that individual could do on their own.

This has been the position for a long time until the law found its place in the governance of human interaction and relations. As such, the law proposed and deposed among others the way marriage should be determined.

It is on that basis that Uganda adopted the English law on divorce to enact the Divorce Act in 1904. That is an about 120-year-old law that is still governing a changed and modern society.

Whereas the Ugandan courts have tried to be as liberal as possible in their judgments to read the provisions of the Act in tandem with the contemporary social order, there is still a lot of injustice meted on some parties as a result of the unchanging law and the fact that our courts have persistently refused to adopt and apply some aspects embraced by other jurisdictions such as irretrievable break down of a marriage.

The current grounds for divorce are colonial, unethical, and immoral, meant to imprison a spouse in a union that has become sour and horrendous. This has also contributed to the rise in domestic crimes like murder, cruelty, and violence since there is little or no solace in the courts of law without tangible proof of the grounds for divorce.

In these circumstances, for marriage and divorce laws to maintain legal efficacy, they must be amended to reflect the time-worn purpose and construction of marriage.

More so, marriage should have a limitation period to allow parties to freely renew it depending on their previous interaction and satisfaction. This proposal will do away with the ideologically inflexible, for some parties, vows and commitments of lifetime partners.

It will also motivate other spouses to be more committed to their families since marriage has got an expiry date that must be regularly renewed.

In conclusion, the law must view marriage as a social arrangement and end it as such. Social contracts do not require strict grounds and higher standards of proof to terminate as that required by the divorce laws which makes it difficult for spouses to harmoniously end their union in the event of disagreements.


Lawyer practicing with TARA Advocates. Areas of practice are: Commercial and Corporate law, Intellectual property law, Labour and employment law, Tax law, Criminal law and Legal advisory services.


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