Family Law Notes
Family Law Notes
Family Law Notes
INTRODUCTION
1. Family as an institution.
2. Nature and scope of Family law.
3. Functions of the family.
MARRIAGE 1.
1. What is marriage?
2. Who may marry?
3. Promise to marry and agreement to marry.
4. Domicile.
What is marriage?
Just like the earlier terms proved difficult to define, so is marriage.
It is usually the case that people may say that marriage is whatever the
parties to a marriage take it to be. This is the first approach to defining it.
Thus, a Christian couple seeking to base their marriage on biblical
principles may well see their marriage in very different terms from a couple
who understand their marriage to be based on Hindu or Islamic principles.
Domicile
As we shall see, domicile is of great importance when dealing with
particular issues in domestic relations. These include divorce causes where
the court has to first determine whether the petitioner is domiciled in
Uganda before the matter is heard. ( refer to S.1 Divorce Act.)
MARRIAGE 2:
1. Types of marriage.
2. Preliminaries of marriage in Uganda.
3. Void and voidable marriages
4. Formalities of marriage.
Marriage has traditionally been at the heart of family law. In Uganda it has
come under challenge in recent years. First, there is always fierce debate
over who can marry. Whereas the Constitution expressly states that
marriage should be between persons of the opposite sex, a lot of debate
has been going on legitimizing same sex unions but this has not gone with
little opposition.
A marriage can be created legally between a male and a female who
possess appropriate legal capacity to marry and who comply fully with
all formal requirements. It is therefore for this reason that no ‘marriage’ can
either be dissolved by divorce or annulled pursuant to the law of nullity
if no valid marriage has been contracted in the first place.
1. Types of Marriages
those that are void and have, therefore, never existed as a valid
divorce or legally authorised separation;
those that are voidable and which will be seen in law to be valid,
marriage; indeed in law, no marriage has been created; and
attendance.
This case can be contrasted with Gereis v Yagoub [1997] 1 FLR 854. Be
it as it may. The distinction but a mere duplication of the term void and
such a distinction should only be created by a presiding judicial officer
when he or she is faced with a problem in deciding whether to distribute
property between the couple or not. However, this distinction is a welcome
reform in modern times where a sham ceremony could pass for a marriage
and parties may want to benefit from the same.
In Re Spence [1990] 2 FLR 278, W married H in 1885 and gave birth to
D in 1891. Later W left H to live with X and gave birth to two sons by
him. In 1934 W went through a ceremony of marriage with X. H was alive
at that time. In subsequent proceedings related to the grant of letters of
administration to D, the question of D’s legitimacy arose. It was held that
the marriage of W to X was void (and, under s 1(1) Legitimacy Act 1976,
persons born before their parents entered into a void marriage were
not to be treated as legitimate). Nourse LJ said: “A void marriage, both as a
matter of language and by definition, is a nullity … It is only an idle ceremony,
achieving no change in the status of the participants. It achieves nothing of substance.”
Voidable marriages subsist from inception until one party succeeds in
obtaining an order for nullification. This means that the impediments to
the validity of the marriage are to help an aggrieved party or interested
Mistake as to identity.
C v C [1942] NZLR 356, 358–9 (Supreme Court, New Zealand) in this
case, Callan J while quoting Moss v Moss (1897) P631 stated that, “But
when in English law fraud is spoken of as a ground for avoiding a marriage, this does
not include such fraud as induces a consent, but is limited to such fraud as procures the
appearance without the reality of consent” . . . “Error about the family or fortune of the
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individual, though produced by disingenuous representations, does not at all affect the
validity of the marriage.”
Note that this decision is also in tandem with the decision in Wegfield v
Mackay (1807)1 Hag. Con. 394 where it was stated that, the law makes
no provision for blind credulity however it might have been produced.
That the law presumes that the husband uses due caution in a matter in
which his happiness and life are so materially involved.
However, the line between mistakes as to identity and attributes may not
be certain. In Militante v Ogunwomoju [1993] 2 FCR 355, the court
voided a marriage involving an illegal immigrant who had assumed the
identity of someone living legally in the UK. The court further stated that
where a person makes a false representation as to his identity, and another
person marries him believing his misrepresentation, fraud of this nature
will destroy consent. One commentator on this case notes that is not
known whether the petitioner ‘thought she was marrying another man, or
simply [as in C v C] that she thought the man had a different name.
d) Consent
This also makes a marriage voidable and not void. The reason for this is
that the parties themselves may wish to rectify it when true consent can be
c) Discovery of impediments.
Normally marriage banns are announced three times after which the parties
may marry after the third publication.
The marriage must be solemnized in one of the churches where the banns
have been published.
5.1. Death
The death of either party to a marriage ipso facto brings the marriage to an
end.
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This is a rather old ground through which a marriage traditionally was
presumed to have come to an end. If H’s spouse, W, disappeared in such
circumstances as to lead to the reasonable inference that they were dead, H
would remarry without committing the offence of Bigamy and the second
marriage would be presumed to be valid.
However, if it were later proved that the spouse was in fact alive when H
remarried, then, the second marriage would be void.
There is no express provision under the Ugandan laws that provides for
dissolution of a marriage by death. However, by implication Section 39 of
the Divorce Act Cap 249, hints on such a dissolution and the fact that
parties can remarry.
Death in these circumstances is a rebuttable presumption. The
presumption of death is dealt with in different statutes.
Section 108 of the Evidence Act for instance provides on whom the
burden of proof lies in a case where the question of whether a person is
dead or alive arises. The provision provides for a time lapse of seven years.
If it is proved that after seven years a person has not been heard from by
those who would naturally have heard of him or her if he or she had been
alive, the burden of proving that he or she is alive is shifted to the person
who affirms it.
For purposes of administration of the estate of such a person, Section 20
of the Estates of Missing Persons Management Act Cap. 159 provides for a
time period of three years.
The petitioner is however not required to rely on these time frames if they
can produce evidence to the satisfaction of a Court of law that the spouse
is dead. However, the timeframes will be of great importance when there is
no evidence at all of what has happened to the spouse.
5.2. Mutual agreement and separation