UJCC and EFU Briefing Document on the Domestic Relations Bill 2003

RECOMMENDED TO BE RENAMED "MARRIAGE AND FAMILY BILL"

UJCC and EFU NOTES WITH CONCERN that the Bill does not take into account the Sociological and Legal Importance and Role of the Family in Society, and the needs to remain within the spirit and framework of the Constitution. As a result it has the following issues to raise and recommendations as a point of constructive dialogue.

It has been concluded that the Bill simply tells people how to marry, and then rushes to inform them how to divorce and divide property. It omits mentioning the importance of the family and its promotion to society. It lightly treats the family as something that can, and should if the parties so desire, be easily dissolved. Reconciliation has no part in this Bill at all. Promotion of the continuation of any marriage must be the legislatures' primary objective.

Christian marriage

The Bill does not define Church marriage as a Christian marriage and includes within the meaning of "minister" no reference to the Christian faith but does include the word "sect", which is not to be attributed to a church or Christian marriage. This need to be changed and rectified.

Discriminatory

The Bill is in fact in its current format discriminatory in relation to Article 21, clause 1 of the Constitution. It provides specific remedies for one religious group, Islam, to deal with marriage breakdown in their own religious courts but not the other religions. This is discriminatory. It offends Article 7, (no religion shall be adopted) and 21 (equality before the law, and discrimination (or different treatment) because of religion), and will sorely test issues of the Rule of Law and who takes precedent. It also does not provide for other courts for other religions.

Declarations as to marriage requirements

Sections 26 of the Bill requires persons intending to enter into civil marriages to make declarations that they are not in breach of the essential requirements of marriage provided for in sections 14-19 of the Bill. This is a good measure BUT it is not universal and therefore discriminatory. There is no similar requirement for all other types of marriage and there is no good reason why similar applicable declarations should not be made under those other marriages. This will provide all those entering into marriage with a safeguard and a positive reinforcement of what is demanded and is good in a marriage, and for a provision that at the commencement of the marriage both parties are aware of what is required in a marriage.

Consents of Others

Churches and ministers encourage that consent of the parents or relatives ought to be sought. During a ceremony of marriage it is asked "who gives away this woman to be married to this man?" The practical reason for that is that the extended families are stakeholders in marriages. To remove this is uncultural and does not recognize the importance of the wider family support.

Marriage Licence Council

Sections 28 and 45 of the Bill permit the Minister of Justice to direct that a church marriage be solemnised in a place which is not a place of worship. These provisions are troublesome. Similarly Section 28 and 36 (which remains unclear and undefined) allows the Minister for Justice to dispense with the need for preliminaries to a marriage and under section 45 may allow a marriage to take place at any location (presumably even on the beach!). This is a potential issue for abuse of power, privilege and position. It is not understood why such wide powers such be given to a Minister of State when dealing with the issue of the institution of marriage. It is believed that under the guidance of the Minister an interfaith Marriage License Council should be set up to deal with these issues.

Cohabitation is marriage

Clause 10 of the Bill attempts to create a presumption of marriage for people who cohabit for ten years. This has major potential problems and does not equate to marriage, and belittles this sacred state. The bill doesn't even define marriage! Cohabitation is not and cannot be equated with marriage. If they want a marriage then undergo a marriage, if not then don't.

Polygamy

Polygamy is unacceptable in not only Christian society but also in the majority of societies worldwide. It is not only unconstitutional in that it discriminates against women and holds them within an impossible marital situation where equal treatment is never achieved, but also disrupts family life and provides uncertainty and lack of adequate resources. The act of infidelity leads more to a prevalence of sexual diseases and their transmission. Polygamy must be outlawed from the date of the bill.

Property

If this Bill is intended to protect women, it will fall very short of that. It has loop holes that work against women. Even where it attempts to provide protection, its provisions are impractical. The Bill must shy away from promoting and upholding individualism within the marriage institution. Property, belongings, money and declared debts owned by those getting married are seen to be joint from the date of the wedding.

Divorce

It is noted with concern that the Bill seeks to change the law to make divorce easier to obtain. The current proposals provide for the potential of divorce on demand, equating marriage to a contract with options to terminate without fault rather than a covenant relationship to be maintained. The UK law upon which the proposal is based is flawed, and the Bill has a more liberalised law than the UK! The UK now has the 4th HIGHEST DIVORCE rate in the world. Is this what Parliament wants for Uganda? There should at the very least be firm reasons for the breakdown of marriage. In the proposed domestic relations Bill it says the court may take into account five facts to prove irretrievable breakdown. At the very least the five proposed facts must be the ones that are accepted by the court to prove the case.

Reconciliation

There is currently no framework within the Bill for the process of reconciliation before the divorce process starts. This is against the tradition of the culture of Uganda and is against the need to promote the maintenance of the family unit as a lifetime occupation. The Bill needs to incorporate a system for reconciliation as the Bill does not provide any alternatives to the courts of law in settling domestic problems and conflicts.

Marital rape

Violence and fear are wholly unacceptable in a marriage. As such a woman, or man, should be protected from this. Criminalization of this will not however lead to reconciliation. The courts should have the power to provide injunctions, but promote counseling and help rather than prison.

Pre and Post nuptial agreements

Clause 93 refers to these types of agreements. These are extremely popular in the USA and becoming more popular in Europe. They effectively allow parties to prepare a contract for divorce before they have got married! This does nothing to value the institution of marriage and starts a couple on the wrong foot before the marriage has begun.

THE THINK TANK RECOMMENDS:

The Bill and subsequent Act should be renamed the "Marriage and Family Act".

1. The Bill must restate that the family is the most basic unit of Ugandan society, upon which society has relied, relies, and shall continue to rely for the inculcation of the rights and duties and values for the guidance of the nation.
   
   
2. The Bill must promote and protect the family by providing for mediation in the event of family disputes.
   
   
3. The key beliefs of the religious groups on marriage and divorce, property and children ought to be codified.
   
   
4. That cohabitation is not to be viewed as marriage.
   
   
5. It was recommended that the expression "Christian marriages" be substituted for "Church marriages" in the Bill.
   
   
6. The definition of a "Christian marriage" should be a marriage of one man and one woman for life to the exclusion of all others.
   
   
7. There should be a licensing process for Churches and ministers for the marriage ceremonies so that only those Churches and ministers who believe in "Christian" marriages will conduct them.
   
   
8. The Bill should provide that parties intending to marry are encouraged, though not obliged, to observe cultural.
   
   
9. All persons who intend to marry must make declarations that they are not in breach of the essential requirements of marriage.
   
   
10. The setting up of a Marriage License Council.
    
    
11. That the reference in the Bill to the use of Quadis courts is deleted and that all people of Uganda are subject to the same laws of Uganda without discrimination.
    
    
12. All marriages should only be solemnised in licensed places of worship, open to the public with at least two witnesses and in daylight hours.
    
    
13. From the date of this Bill being enacted there should be no more polygamous marriages.
    
    
14. The provisions of the Bill which provide for unequal acquisition and ownership of property should not apply to marriages.
    
    
15. All property (and liabilities) owned by a spouse before and during marriage should be jointly owned.
    
    
16. That the Act specifically states that in dealing with financial matters that all assets including moveable and immovable property, including business assets are seen to part of the money available for division and that in dealing with division of property that that family including children and dependants are catered for.
    
    
17. That the wording be changed to reflect the fact that at least one of the five reasons MUST be proven to the court.
    
    
18. That the court must be assisted by assessors to show that the breakdown has genuinely been proven by one of these reasons.
    
    
19. That cooling-off periods are given for reflection during any divorce process.
    
    
20. It is also proposed that all parties before a petition of divorce is allowed to proceed should attend authorized counseling.
    
    
21. That unconsensal intercourse by means of violence or violence in a marriage be dealt with in the civil courts by way of injunctions and protection orders but not criminalized. Counseling should be promoted.
    
    
22. That pre and post nuptial agreements are taken out of the bill completely. They provide for conditional marriages which are totally unacceptable and in contravention of the institution of marriage.