NKUMBA UNIVERTSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

COURSEWORK

COURSE : Bachelor of Laws (LLB).

ACADEMIC YEAR: Year 2, Semester 1.

COURSE UNIT : Family Law 1.

LECTURER : Mr. Adam Kirumira.

STUDENT NUMBER : 2200100635.

STUDENTS INDEX NO : 2022/AUG/LLB/B230747/DAY.

DATE OF SUBMISSION: 16th October, 2023.

QUESTION:
 Marriage is the voluntary union of one man and one woman. Is this true in relation to the law
relating to marriage in Uganda?

1.0 Introduction
Marriage being a fundamental social institution that brings people together, this essay will look at the legal dimensions
concerning marriage in Uganda. It will discuss meaning of marriage, types, what amounts to marriage, offences involved,
recommendations and conclusion.
Definition of marriage: According to the Black’s Law Dictionary1, marriage is defined as a contract according to the form
prescribed by law, by which a man and woman, capable of entering into such a contract, mutually engage with each other to
live their whole lives together in the state of union which ought to exist between a husband and wife.In Seuss v Schukak2 &
Davis v Davis, 119 conn marriage is defined as a ceremony or formal proceeding by which persons take each other for
husband and wife. Lord Penzance in Hyde v Hyde3 defines marriage as a voluntary union for life of one man and one woman
to the exclusion of all others.
1.1 TYPES OF MARRIAGE: Marriage can be monogamous or polygamous in nature. In Hyde v Hyde and woodmansee4,
lord Penzance defined monogamous marriage as voluntary union for life of one man and one woman to the exclusion of all
others. In Uganda such monogamous marriages include civil marriage/church marriages and Hindu marriage. Underhill J in
Secretary of State for Work and Pensions (SSWP) v. Akhtar5 recognized polygamous marriage as such a marriage celebrated
under a law that permitted polygamy. It’s also a voluntary union for life of one man with two or more wives. Such polygamous
marriages include customary and Islamic marriages.
2.0 WHETHER OR NOT MARRIAGE IN UGANDA IS A VOLUNTARY UNION OF ONE MAN & ONE WOMAN.

(a) Civil Marriage & its requirements Marriage: it’s provided under the marriage act cap 251. The registrar being
in charge of the marriages. The marriage Act spells out the procedures and requirements for both civil & church
marriage.
(i) Person should not be married: According to section 34(1)6, civil marriage in Uganda is monogamous in nature.
It states,’’ one should not be married in any other type of marriage with anyone other than the person to whom they
want to be joined with’ ’this clearly indicates marriage for one man and one woman (Hyde v Hyde in 1866). Section
367 also states that any person married under civil marriage shall be incapable during the continuance of that
marriage contract a valid marriage under customary law. Section 11(e)8 provides that ‘’ a customary marriage shall
be void if one of the parties has previously contracted a monogamous marriage which is still subsisting’’. In
Nalumansi v Kasande & 2 0rs9, the Supreme Court found that the valid marriage existed between the deceased and
the appellant. The deceased did not have the capacity to enter into a valid customary marriage with the 1 st
respondent having contracted a civil marriage with the appellant.
(ii) Notice: Section 610 provide that one of the parties to the intended marriage is required to give notice to a
registrar who would enter it to the notice book. Section 911provides that the notice shall be entered in marriage
notice book and published. 21 days shall be given for inspection in case of any objection to the marriage. If there
isn’t any objection, the registrar will issue parties certificate permitting them to get married as provided under
section 10(1)12. All the cited provisions of the act in this paragraph indicate that marriage in Uganda is a voluntary
union of one man and one woman.
(iii)Consent for marriage: It’s arguable that consent connotes voluntary acceptance. Article 31(3)13provides for free
consent of parties intending to get married . The position of the law is that civil marriages being monogamous,
parties to it voluntarily enter into it. Section 1714provide that where parties to the marriage are below 21 years, they
will expressly be required to consent. This indicates a voluntary union when parts consent to such a condition.
Where there’s no consent such a marriage is voidable. In Lee v Lee15, a petitioner’s father forced him to get married
on gun point. Court considered such an act as force hence there was lack of consent in the first place. In Sigh v.
Kaur16 where a petitioner thought annulment of his marriage on grounds of duress. Just like in parojic v. Parojic17
where the petitioner contended that there was lack of consent from her.
(iv)Party to be male and female: Article 3118provides for marriage to be between male and female. Same sex
marriage thus is prohibited in Uganda regardless of whether a person underwent surgery to transform to male or
female. In Cobbet v. Cobbet19 a petitioner thought to nullify the marriage after he realized that the defendant was
born male but underwent surgery to transform to female. Court held that there was no marriage from the very start
since marriage is between male and female. In Talbot v, Talbot20, a defendant who claimed to be a woman got a
man to marry her but the petitioner later on thought to nullify the marriage on grounds that she was male. Court
ruled in favor of the petitioner.
(v)Age: In pugh v pugh21court held that ‘’it was immorally that persons of immature age can get married’’. Article
31 permits person aged 18 years and above to get married. Its requirement for marriage in Uganda.

(b).Church Marriage & requirements for a marriage:

According to section. 2022, marriage in Uganda can be celebrated in any licensed place of worship by a recognized
minister of the church. Church marriages in Uganda are monogamous in nature. As its in Hyde v Hyde (supra).
According to section 2123 a minister will be precluded from celebrating a marriage in case of any impediments
unless parties to the marriage deliver registration certificates. The requirements include:
(i) Publicity: church marriages require publicity with banns entered in an official register with real names known by
everyone of the parties intending to get married. In Dancer v Dancer24, the petitioner thought to nullify the marriage
on grounds that the defendant had used different names on her banns. Court help that there was no undue
publication of the banns since the defendant had used the names well known of her in the parish. In Chipchase
v.Chipchase25, the appeal court held that the defendants’ use of the name Mathews was of no concealment but rather
a name know of her in the parish. .
(ii) Sex: Article 3126 provides for marriage between male and female couple not the same sex. Same sex marriages
are criminal in Uganda under section 14527. In cobbet v cobbet (supra), court nullified marriage where the defendant
was discovered to have been a male at birth. Thus the marriage was void.
I. Offences under the marriage Act Cap 251:To reaffirm that marriage in Uganda is a voluntary union of one
man and one woman, a person commits an offence if he or she under goes a marriage ceremony at the expense
of a subsisting marriage. A person will be charged of bigamy under section 4128 and will be imprisoned for 5
years. According to section 4229, a person who marries a person who is previously married commits an offence
and will be jailed for not more than 5 years. In R v.Allen30 court held that the defendant committed bigamy
under section.5731having married another woman while his wife was still a live
II. Exception to the General rule: If a person to the marriage disappears for 7years, accused can raise a defense
of having had no believe that the petitioner was still alive. In R v Tolson32, the defendant’s husband had
disappeared for over 7years. He later returned when the defendant was already married. The defendant was
charged with bigamy. She raised a defense of having had no believe that the petitioner was alive. She was
acquitted.

(c) Hindu marriage:

It’s a monogamous form of marriage under the Hindu marriage and the Divorce Act cap 250. Section.133define a
Hindu as a person who profess a Hindu religion, a person who is a Buddhist of Indian origin, a Jain or a Sikh by
religion. Section 2(1) (a)34allows marriage where neither party has a spouse living at the time of the marriage. In
Hindu religion, marriage is a sacrament. In Tikait Munmohinti v.Basant Kumar35 court observed a Hindu marriage
as a sacrament. In Gopal Kishan v. Mithilesh Kumari36, Court as well observed that Hindu marriage is a sacrament
not a mere betrothal. This implies that marriage in Uganda strongly meant for one man and one woman as
monogamous one.

(1)Requirements for Hindu marriage:

(ii) Monogamy: Section.2 (1) (a)37 allows the marriage where neither party has a spouse living at the time of the
marriage. In SMT. Yamunabai Anant Rao Adhar v.Anant RaoThiraram Adhar38. Court held that a marriage
becomes null and void where it’s in violation of section 2(1) (a) of the act.
(iii) Soundness of mind: Section 2(1) (b)39call for soundness of the mind at the time of the marriage for the parties
intending to get married. The soundness of the mind can be in a form of idiocy or lunacy. In Ajitrai Shivprasad
Mehta v. Bai Vasumati40, court held that when the mode of matrimonial relief is unsoundness of the mind , it must
be proved beyond a reasonable doubt so as to satisfy the court in everything possible.
1) Offences and penalties: According to section.741, provides that any person who solemnizes or procures to be
solemnized in a marriage in respect of which any of the conditions specified in section 2(1)(c)(d)and(e) has
not at a time marriage been fulfilled; commits an offence and is liable on conviction to a fine not exceeding
500shillings.
However, despite the above discussion, its important to note that existence of various tribes, cultures/customs and
religions in Uganda, has influenced marriage to adopt to different laws such as customary laws, Islamic laws among
others. Article 242and section 1543. Recognize all customs but condemn all those inconsistent with the constitution.
Thus customary law recognizes customary marriage and Islamic laws recognize Islamic marriages as discussed
below:
(d)Customary marriage: (customary marriages Registration Act cap248) (CMRA)
In Alai v.Uganda44, Sir Udo Udoma defined marriage to mean a ceremony by which a man and a woman become
husband and wife creating a condition of belonging to a particular class of people to whom the law assigns a certain
equal capacity as specified. Sec.145, defines customary marriage as such a marriage celebrated in accordance with
the rites of the African community where one of the parties is a member of that community. But this definition was
condemned in R v, Amkeyo46 where; Hamilton J disregarded a relationship entered by African native with a woman
of his tribe being a misnomer and stated it as being a wife purchase.
(d)(i)Nature of customary marriage: Section.4 of the Act provide that customary marriages are polygamous in
nature. In Kintu v. Kintu47 court held that if a person marries customarily, he can marry as many women as he can in
customary law. In Uganda v. Peter Kato& Anor48.it was held that in determining whether the marriage was under
customary law, it was important to a certain whether the union was treated as a marriage by the customs of the
nation, race or sect to which the parties belong. In Nassanga v.Nanyonga49court held that if the intending parties to
a customary marriage are of different tribe, then the tribal customs of the girl are to be followed.
(1)Requirement for a customary marriage: (i)Bride Price: This is a payment made by the bridegroom to the
family of the bride allowing to marry her. It varies from custom to custom. How in MIfumi & 11 others v.A.G50,
there was an attempt to wipe out payment of bride price since according to the petitioners, its inconsistent with Art
31(3), 21(2), 2 of the 1995 constitution. Therefore in regards to this case, pride price determines marriage. Thus a
person may may marry as many women as he can as long as he can pay bride price a result; polygamy.
(ii) Age: Section 11(a) & (b)51 a girl should be 16 years and a boy18 years for them to get married. Although this
provision contradicts with Article 31 and 252, nonetheless, Article 2(1) can be read together with Article 27453.
(iii) Consent: Article 31(3)54 states that marriage shall be entered with free consent of the man and woman. In
Pamela Sabina Mbabazi v. Henry Bazira55the court underscored the necessity of the couple’s consent to marry.

(e)Islamic marriage (Marriage & Divorce of Muhammedan’s Act cap 252)

Article 129(d)56 recognizes all such qadhis’ courts of marriage and divorce which in such Islamic marriages apart.
According to Quran 4:21, marriage (Nikah) is defined as a sacred social contract between the groom and the bride;
it’s not a sacrament. In Islam just like other marriage, a woman is to be submissive to the husband even if marries
another wife. In Zainabu v.Muhamed57 Essene of this case is that a woman should be submissive to her husband as
long as the man still needs her. A woman who shows ‘’nashiza’’ isnot entitled to any anything.
(1)Requirements for Islamic marriage:
In Abdul Kadiv v. Sadiv & Anor58 J Mahmood observed that Muslim marriage is purely a civil contract rather than a
sacrament. Based on his Observation, it’s conclusive that Muslim marriage is to legalize sexual relationship of male
& female and also precreation of a child. Thus Islamic marriage conditions are:
(i) Age: According to Hedaya, the age of puberty for female is 9years and 11 years for male. The Privy Council in
Muhammed Ibrahim v. Atkia Begum & Anor59 , court held that a girl is believed to have attained puberty if she is
15 years. As to Islamic marriage puberty determines marriage.
(ii) Soundness of the mind: At the time of marriage both parties intending to get married should be of a sound
mind. Person with unsound mind have no capacity to enter a marriage contract. Unsoundness of the mind can be
idiocy or Lunacy. However, lunacy is curable; thus a lunatic may enter into a contract at the time interval when he
behaves like a sane person.
(iii) Free-Consent: In Sayad Mohiuddin v.Khatijabi60, the defendant contended that as she was an adult virgin at
the time of marriage, and the marriage was performed without her consent and against her wishes, the marriage was
invalid, and the plaintiff was not entitled to claim restitution of the conjugal rights against her. Court upheld her
contention and the suit was dismissed. In Hassan v.Kutti Beary: 113 Ind Cas 306, (1928)55 MLJ 828, it was
contended on her behalf that, her being an adult virgin, the ‘’nikkah’ performed without her knowledge and consent
is invalid under the Shafi sects of Sunnis.
(iv)Dower: It’s referred to as ‘’ Mahr’’. Amount of money given to the bride as a consideration of marriage. In
Begun v. Rizwan Ali, AIR 1980 ALL 119, Court held that right to mahr comes into existence before cohabitation. It
added that if a wife is a minor, her guardians can refuse to send her to her husband till payment of dower & if she’s
at the husband’s custody, she can be brought back. Therefore the requirements above justify the legal entry into
marriage according to Islamic laws. Thus in Uganda, Islamic marriage considers such requirements as a basis for
marriage.

3.0 Recommendations: There is need to educate people on legal principles pertaining marriage in Uganda. This
is because majority of Ugandans believe cohabitation is marriage, the study by the Uganda Registration Bureau
(URSB) a body in charge of marriage registration estimated in 2020 that up to 70% of couples under the age of 40
had not registered their customary marriages in their database.
 4.0 Conclusion: In summary therefore, it’s conclusive that civil/church marriages and Hindu marriages entail
monogamy as a basis of marriage contrary to customary and Islamic marriages which entertain polygamy. However
the bottom line is that marriage in Uganda is a union of one man and one woman although other forms of marriage
may be considered due to existence of different beliefs in the country. Nonetheless same sex marriages in Uganda
are prohibited.
1
by Henry Campell 4th edition page 1124
2
358 III. In Davis Davis, 119 conn .194, 175A
3
(1866)LR1 PD 130
4
Ibid
5
[2021]EWCA Civ 1353
6
marriage Act cap 251,1904
7
Ibid
8
of the Customary Marriage Registration Act cap
9
(civil Appeal no.10 of 2015[2017] UGSC21
10
of the marriage Act cap 251
11
Ibid
12
Iid
13
of the 1995 constitution of Uganda as amended
14
supra
15
(1928) 3 SW 2D 672
16
[1981]Fam law 152, CA
17
(1959)1 ALLER
18
of the 1995 of constitution of Uganda as ameneded
19
(1970)2 All E.R.33
20
(1967) 111 SJ 213
21
[1951]2 All E.R 680
22
of the marriage Act cap 251
23
Ibid
24
[1948]2 ALLER 731
25
(1939) 3 All ER 895
26
of 1995 of the constitution of Uganda as amended
27
of the penal code Act cap 120
28
of the marriage Act capo 251
29
Ibid
30
(1872)LR1 CCR 367,
31
of the offences against person’s Act of 1861
32
(1889)LR 23 QBD 168, CCR
33
Hindu marriage and the Divorce Act cap 250
34
Ibid
35
[ILR 28 CAL 758],
36
[AIR 1979 ALL 316]
37
supra
38
[1988]Air Sc 644.
39
Hindu marriage and divorc e Act ,1961
40
, AIR 1969 Guj 48
41
of the Hindu marriage and Divorce Act cap 250 1961
42
of the 1995 constitution as amended
43
of the judicature Act cap 13
44
[1967] EA 596
45
Of the customary marriages Registration Act cap 248
46
[1917-1918]EAPLR
47
( Divorce Appeal No.135 of 1997)[2001]UGHC 46,
48
[1976] HCB 204
49
[1977]HCB 314,
50
( constitutional Appeal No.2 of 2014)[2015] UGSC 13
51
of customary marriages Registration Act cap 248,
52
of the 1995 constitution as amended
53
of the 1995 constitution of the republic of Uganda as amended
54
Ibid
55
(court of Appeal caseNo.44 of 2004),
56
supra
57
[1973] EA 280
58
(1886)8 ALL 149;
59
AIR[1916] PC 250
60
(1939) 41 BomLR 1020

BIBLIOGRAPHY:

Statutes/Laws Apllicable
1) The 1995 constitution of the re public of Uganda as amended.
2) The marriage Act cap 251, 1904.
3) The Hindu Marriage and the divorce Act cap 250, 1961.
4) The customary Marriage Registration Act cap 248, 1973.
5) The marriage and Divorce of the Mohammedans Act cap 252.
6) The judicature Act cap 13.
Case Laws:
1) Seuss v Schukak 358 III.
2) In Davis v Davis, 119 conn .194, 175A.
3) Hyde v Hyde (1866).
4) Secretary of State for Work and Pensions (SSWP) v. Akhtar [2021] EWCA Civ 1353.
5) Nalumansi v Kasande & 2 0rs (civil Appeal no.10 of 2015[2017] UGSC21.
6) parojic v. Parojic (1959)1 ALLER.
7) Cobbet v. Cobbet 1970.
8) SMT. Yamunabai Anant Rao Adhar v.Anant RaoThiraram Adhar [1988] Air Sc 644.
9) Ajitrai Shivprasad Mehta v. Bai Vasumati AIR 1969 Guj 48.

Text books/ journals:

1) Boyd, S.B. and H. Rhoades, Law and families (Ashgate, 2006).
2) Brenda Hale et al, The family law, law and Society: Cases and material (6th edn, 2009, OUP); D.
Kelly Weisberg and Susan Frelich Appleton, Modem Family Law cases And Materials (1998).
3) Diduck and Kaganas, Family Law, Gender and the State (3rd ed 2012).
4) Hale,Pearl,Cooke and Monk , The Family law and society ; cases and materials (6 th ed 2008).
5) Harris-Short and Miles, Family Law: Text, Cases and Materials (2nd ed 2011) (and updates on
www.oup.com/uk.orc/bin/9780199277162/).
6) Hovius , Berend, Family law : Cases, notes and Materials, 6th edition (Scarborough: Thomson
Carswell,2005)
7) Michael Freeman, Understanding Family law (2007, Sweet and Maxwell).
8) Diduck and Kaganas, Family Law, Gender and the State (3rd Ed 2012).