A new and important aspect of the Marriage and Divorce Bill is that it defines property rights for cohabitating couples
The International Women’s Day commemoration last month, presented us an opportunity to reflect on the plight of a particular group of women in Uganda who are unprotected and vulnerable in the current legal and societal framework: women in domestic partnerships who are not formally married to their partners.
In Ugandan society, domestic partnerships are very common and it is often the choice of couples not to have a formal traditional marriage ceremony nor to have their marriages registered with the Uganda Registration Services Bureau. Considering the high expectations of society in terms of payment of dowry and elaborate wedding receptions, living together without the formalities is an attractive option.
The trouble with this practice is that women are often unaware of the fact that they have no protection under the law when their domestic partnership comes to an end. Women who have contributed their personal resources to acquiring property jointly with their partners, often stand to lose their share when the relationship ends. Married women in the same situation, however, is entitled to their share of the property when the marriage comes to an end. The legal regime thus discriminates against women on the basis of marriage and does not offer married women and unmarried women in domestic unions equal protection of the law.
Let’s look at the story of Jane to illustrate this injustice. Jane invested money in land and a building project along with her male partner over a number of years. When Jane and her partner separated, the man assumed ownership of the land and left Jane with nothing. Jane was determined to receive compensation for her share in the property and approached FIDA Uganda for help. The case was reported in 2009, after the woman had already sought support from various other bodies which were not able to help her. A case was instituted in court and after the usual delays in the court system, she only received a judgment in her favour in 2020. Even with more than a decade delay in receiving her share of the property that was jointly acquired with her partner, Jane is still more fortunate than most women in her position.
With the exception of the 1995 Constitution, the subordinate laws that regulate the distribution, management, and ownership of property during marriage, upon divorce, and death of a spouse are discriminatory of women. Even where the relevant statutory laws are protective of women’s rights to property, their implementation is hindered by customary laws and practices, socialization, and the generally weak economic capacity of many women in the country. The Joint Submission by the Women’s Rights Cluster for Uganda to be considered at the Twelfth Session of the Human Rights Council by National Association of Women’s Organisations also report about the fact that in many homes, wives provide labor to support their husbands without having a stake in the use or monetary benefit from it.
Ownership of property is linked to legal and social norms regarding property rights and also to those regarding marriage and inheritance. Individual property ownership must be viewed within the context of families and households. If property ownership is an important source of resources, it is equally true that exclusion of individuals from asset inheritance exacerbates vulnerability to chronic and intergenerational poverty. Thus, understanding gender patterns in inheritance is critical to understanding women’s vulnerability and opportunities.
Uganda has a dual legal system where customary and statutory (written) laws are applied side by side. At the same time, statutory law takes priority over customary law if the two are in conflict. This priority of statutory law means that all Ugandans, regardless of clans and customs, have a similar standard in terms of rights and responsibilities. This is not to undermine customs and cultures, but to provide an equal standard of rights for all people in Uganda.
Partially because statutory law is rarely well known or well understood, communities often use customary law. Some people see statutory law as opposed to customary law and therefore shun it or do not acknowledge it. The community rights worker’s challenge is to introduce statutory law in a way that makes it acceptable to people without being seen as attacking culture.
Uganda has a fairly good record of ratification and accession to international and regional human rights treaties, however, the extent to which a country has discharged its human rights obligations as enshrined in the international instruments is only judged by the extent to which domestic laws, programmes and policies have been modified to give effect to the international standards.
The Uganda Constitution and The Uganda National Land Policy outlaw any discrimination against women concerning property acquisition and ownership. The Land Policy in particular pledges to reform all property laws, integrate women in land decision making, promote women’s inheritance of land, among others, as some of the ways to guarantee women’s full and equal access, use and ownership of land. Although several laws have recently been enacted to improve the situation of women, their implementation is hindered by traditions and deeply entrenched patriarchal attitudes. In other related legislation such as the Succession Act, when a male spouse dies intestate, a widow is entitled to only 15% of the estate, while 75% goes to the children, 9% to dependents and 1% to the customary heir. The allocation of 15% to the surviving wife in intestate succession effectively discriminates against women. Moreover, in a polygamous marriage all surviving widows have to share the 15% of the estate. In addition to these weaknesses, the Act does not cater for cohabiting wives.
Under the Land Act, only two sections directly address gender, land and property rights. Section 38A of the Land (Amendment) Act 2004 provides for a spouse’s security of occupancy on family land, and section 39 requires spousal consent prior to entering into any land transaction concerning land on which the spouse resides on and uses for sustenance. Section 28 of the Act specifically states that any decision that provides women, children, or persons with a “disability access to ownership, occupation, or use of any land or that violates Constitutional principles,” shall be invalid. The 2004 and 2010 amendments to the Land Act provide further protection for spouses by giving them the right to security of occupancy on family land. Security of occupancy means a right to have access to and live on family land and to give or withhold consent to any transaction, which may affect these rights. “Family land” includes “land on which is situated the ordinary residence of a family” and “from which the family derives sustenance.” Though the Land Act is fairly progressive in establishing protections for women’s land rights, it stops short of establishing co-ownership rights among spouses, a provision that was passed by Parliament but omitted from the final draft of the Act, reportedly due to an administrative oversight.
In Uganda, as in many other parts of Africa, women are the primary cultivators producing an estimated 80% of food crops and contributing to 90% of all labor for food production. And yet women own only 7% of the land, meaning that the vast majority of women access land only through a male relation, usually a father, husband or son. Most land in Uganda is held under customary tenure and is regulated by customary law. There are many socio-cultural practices that discriminate against women, discouraging them from owning land or sanctioning them for it. Owning land brings power, and the fact of women having power disturbs social order, stability, and tranquility. Certain customary practices, like the giving of bride wealth and polygamy, reduce women’s security on land which is another way in which women are effectively denied their right to land. Because customary rules systematically exclude females from the clan or communal entity, they also exclude females from ownership of land. Moreover, since women are seen as belonging to neither their families nor marital clans, they are denied by both sources the opportunity to own land. As a result, they are alienated from land ownership from childhood to widowhood.
Statutory law provides greater protection for women, allowing for female inheritance and land ownership. Although it trumps customary law in theory, statutory law is less utilized in practice. With the formal laws of marriage and inheritance weakly defined and enforced, women’s property rights within marriage and the family are still governed primarily by social norms and customary law.
This is especially true in rural communities, where ignorance of statutory law is compounded by high illiteracy rates and the inaccessibility of courts. Thus even where widows may have the statutory right to administer the estate, access to and control of customary land is severely limited. Research shows that competing inheritance or property claims are most often first addressed through interpersonal negotiations, possibly involving the mediation of heads of families or clans or local customary leaders.
A 2008 study commissioned by Uganda’s Ministry of Lands, Housing and Urban Development states: ‘Land in Uganda is increasingly becoming a problem for the poor people, with shortage of land being the second most important cause of poverty, after health. But perhaps one of the key concerns with regard to land use in Uganda relates to women’s land rights, particularly denial of inheritance, inability to prevent sales by men, disincentives to development of the land they occupy, disinheritance of widows, etc.’ (Premium Consulting Ltd, 2008:iii).
The current statutory laws of Uganda do not protect the rights of women in cohabitating unions to that union’s shared property. This means that if a cohabitating woman’s partner dies she is not able to use the law to claim inheritance to the house and other properties they shared, even if she had contributed toward their acquisition. And yet, majority of women in Uganda live in such circumstances, including polygamous arrangements.
The Marriage and Divorce Bill is a crucial piece of legislation for Ugandan women and, among others, it extends property rights to cohabitating partners. The Bill has faced significant opposition from both customary and religious leaders. The law is intended to reform and consolidate the law relating to marriage, separation and divorce in Uganda and therefore addresses issues like property, bride price and polygamy which are issues that understandably get people riled up. The Marriage and Divorce Bill is supposed to give effect to Article 31 of the Constitution, which gives men and women equal rights in getting married, during marriage, and if and when they decide to end the marriage as well as reflect and conform to other regional and international human rights instruments that Uganda is signatory to. Although The Marriage and Divorce Bill applies to all marriages in Uganda, the Muslim community obtained permission to have their own marriage and divorce law. Therefore, the Bill does not offer much protection to Muslim women given the dilemma on issues of religious rights conflicting with issues of gender equality in contexts of Sharia law.
Among other things, the Marriage and Divorce Bill intends to: (1) Make widow inheritance illegal. Widow inheritance is the practice of a male family member of a deceased man marrying his widow without her consent. (2) Make asking for the return of bride price a crime. Bride price would remain legal under the Bill but is not required. (3) Make sex with a wife or husband without her/his consent a crime. The first two issues lie at the heart of the controversy over the Bill, as bride price and widow inheritance are strongly rooted in the cultural practices of Uganda. A new and important aspect of the Marriage and Divorce Bill is that it defines property rights for cohabitating couples. Current law is silent on property rights of cohabiting couples (not formally married) and only applies to married couples, leaving cohabiting couples who comprise the majority of the population vulnerable.
While Parliament has discussed the Bill at length, there has been no significant progress in having the Bill translated into a law. From the nature of cases that legal aid service providers like FIDA-Uganda handle, especially around the lockdown and the time thereafter, it is clear that the economic hardship of women intensified and many domestic situations also reached a breaking point amid the consequences of all the measures imposed to curb the spread of COVID-19. The plight of women who are left without assets and resources at the end of a domestic relationship can no longer be ignored. It is time for Parliament to prioritize the passing of the Marriage and Divorce Bill.
Women can’t wait any longer!
By Elizabeth Kemigisha
6th April 2021
First appeared on New Vision online, Protect women in domestic partnerships – New Vision Official
The writer works with FIDA