BISHOP STUART UNIVERSITY
FACULTY OF LAW
BACHELOR OF LAWS
2024/2025
NAME: JUUKO JUDE DAMASCUS
REG.NO: 23/BSU/LLB/3213
LECTURER: COUNSEL KABASEKE CHARLOTTE (PHD)
COURSE UNIT: FAMILY LAW
QN: EXAMINE THE RELEVANCY OF THE LAW ON APPROBATION AND REPROBATION OF MARRIAGE IN
UGANDA
From the legal perspective, marriage is defined as a legally recognized union between two people (man
and woman) typically involving specific rights, responsibilities and obligations. This relationship is
regulated by law, formalizing the bond between individuals in a way that is recognized by the state and
grants them certain privileges and responsibilities that are enforceable in a court of law. Article 31(1) of
the constitution of the republic of Uganda provides that persons are free to get married and form a
family as long as the two are aged 18 years and above and article 31(1)(b) (supra) provides for the rights
entitled in marriage.
In common law jurisdictions, marriage has historically been understood as ‘’the voluntary union foe life
of one man and one woman to the exclusion of all others,’’ as articulated in the case of Hyde v. Hyde
(1866). The black’s law dictionary simply defines it as a legal union of couple as husband and wife.
The Latin maxim qui approbat non reprobate (one who approbate cannot reprobate) is the concept
between the principle of approbation and reprobation. The meaning of the English word approbation is
the official recognition or approval of any document or instrument whereas the meaning of the word
reprobation is the severe disapproval of the same. It can therefore be well understood that these words
are contrasting in nature and cannot exist on the same page of legality. The law does not permit one
person to say that a particular transaction is valid to attain some benefit out of it and later on disregard
the same transaction stating it is invalid.
The doctrine of approbation and reprobation is a legal principle that refers to a person or entity taking
inconsistence position in legal proceedings or actions. In other words, a person cannot approve or
benefit from an action in one instance and then disapprove of it in another instance. It is a principle of
equity that prevents a person from accepting and rejecting the same situation or set of circumstances at
different times for their benefit.
In the context of marriage and divorce, this doctrine can be invoked when a person having accepted a
particular position in relation to the marriage (like acknowledging its legality or seeking certain rights
from it), later attempts to take contradictory position (such as denying the validity of the same
marriage). This is particularly relevant in case where one party attempts to gain certain legal or financial
benefits from a marriage and then later challenges the same marriage’s validity to escape other
obligations. For example, in marriage and divorce cases, a party cannot for example claim marriage
benefits like inheritance rights and then deny the marriage validity to avoid spousal support or division
of property. The court expects consistent behavior from individuals regarding the marriage validity and
associated rights
According to Husbury’s law of England, “after taking advantage under an order- for example for the
payment of costs, a party may be precluded from saying that it is invalid and asking to set it aside. 1
This simple concept behind this principle is that a party has to decide for itself a remedy.it cannot both
approbate and reprobate a transaction.
According to State of Punjab and others v Dhanjit Singh Sandhu2, It is stated that defaulting allottees of
valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and
conditions of allotment and later seeking to deny their liability as per the agreed terms. In RN Gosain v
1
Halsbury’s law of England, 4th edition, vol 16 par 1508
2
AIR 2014 SC 300
Yashpal Dhir3 it is provided that the law does not allow a person to approbate and reprobate at the
same time.
Basically, the doctrine of probation owes its existence to case law and this means that to appreciate it,
there is need to critically look at case law precedents. It has sometimes been said that the doctrine owes
its origin from a Scottish case G v M 4in which the respondent’s wife in answer to the petition of the
husband for divorce, successfully prayed for a declaration of nullity on grounds of impotence. Lord
Selbourn C.J in the dicta presents quite a classic statement of the law but expanded it to a plea of
insincerity.
Unlike the ancient common law and Scottish development and application to wills, trusts and
succession, the doctrine of approbation and reprobation in Uganda has received a vast usage and
application with extension to land matters, civil appeals, contracts and many other spheres. Its
application is pronounced in many cases such as Ken Group of companies Ltd v standard-chartered
bank (u) ltd and 2 ors HCCS 486/2007.
Cout noted that the doctrine is based on the doctrine of election that no one can accept and reject the
same instrument and that a person cannot say that one time the transaction was valid and there by
obtain an advantage from it and then turn around and say it is void for the purpose of securing some
other advantage.
In Magoba v Magoba5, the doctrine was applied where a party who had previously acknowledged a
marriage later sought to deny it to escape obligations. The court upheld that having accepted the
marriage’s existence, the party could not later repudiate it to avoid legal responsibilities. This aligns with
the principle that one cannot ‘’blow hot and cold’’ by accepting and rejecting the same marriage for
different benefits or avoidance of obligation.
The doctrine of approbate and reprobate in common parlance can be understood to signify a proverb
that ‘you can’t eat your cake and have it too!’. It traces its roots to laws of Scotland and is essentially a
principle of equity. It is further based on the rule of estoppel. In Rap Chand Ghosh v Sarveswar
6
Chandra, it has been held that the doctrine under the rule of estoppel can be termed as an equitable
estoppel if no statute expressly provides for it.
Lord atkins remarks on the doctrine of approbate and reprobate has been quoted in many judgements.
He observed that this doctrine applies in a situation where a person has to make a choice between two
rights but he cannot choose both. If he chooses one between the two, then cannot afterwards choose to
assert the other. Lord Blackburn observed on the similar lines that when a man chooses one or the other
of two inconsistent things, and when he has made his election, there cannot be a retraction from the
option so chosen.
Further, the doctrine of approbate and reprobate is based on the maxim ‘’allegans contraria non est
audiendus’’, which means that when one utters statements contradictory to one another, the same
shall not be heard. To this effect therefore, one a party chooses to dissolve a marriage for example, and
makes a statement that can help court to have reasonable believe that the marriage in question be
3
AIR 1993 SC 352
4
1885 10 App .Cas.171
5
(1974) HCB 225
6
(1906) ILR 33 Cal 1019
dissolved, and goes ahead to dissolve the said marriage, he /she cannot come up to assert that what he
mentioned earlier was not correct.
In MPB v LGK7, a recent English decision has most succinctly laid down the conditions for the doctrine of
approbation and reprobation to apply in a situation as follows: -
(i) The first condition is that the party must have elected or made his choice in clear and
unequivocal terms;
(ii) The second condition is that it is not necessary for the electing party to have taken a benefit
from the choice he has made as such;
(iii) The third condition is that the electing party’s subsequent conduct must be inconsistent
with his earlier election or approbation.
In essence, the doctrine is about preventing an inconsistent conduct and ensuring a just outcome.
In Uganda, the legal principle of approbation and reprobation of marriage plays a significant role in
family law. The doctrine, rooted in the principles of fairness and consistency, is relevant in cases where
individuals seek to claim certain rights or benefits from a marriage while simultaneously challenging its
legitimacy.
Prevention of fraud and inconsistency: the doctrine of approbation and reprobation is relevant in
Ugandan marriage law to prevent parties from benefiting unfairly. For example, a person cannot claim
to be married to gain inheritance rights or gain property benefit and then deny the marriage’s validity to
avoid responsibilities, such as spouse support. Courts in Uganda have applied this doctrine to prevent
such inconsistencies.
Maintenance of legal certainty: The doctrine reinforces legal certainty and public policy by ensuring that
once a marriage is legally recognized, parties are bound by its obligations and rights. This approach
upholds the sanctity of marriage and discourages opportunistic behavior that could otherwise
destabilize family structures. In Kahaya & Anor Kanyoro & Ors 8court applied the principle of
approbation and reprobation to bar a party from accepting part of a decision favorable to them while
contesting the rest. Court of appeal held that a party must adopt a consistent stance when it comes to
court judgements and procedural conduct.
Protection of rights and interest of vulnerable parties: in Uganda, where marriages are primarily
governed by the marriage act, customary marriage act, and other family laws, the doctrine safe guards
the rights of the more vulnerable party in marriage, often the wife from being denied of claims of
matrimonial property. Article 31(2) of the constitution of the republic of Uganda clearly spells out the
rights of widows and widowers once a spouse dies. This means that the widow or widower must have
been married to the deceased and confirms to this marriage. Any contradictory information as to denial
of the marriage, he/she does not qualify to the rights given under this Article.
The doctrine has been relevant in various Ugandan cases, often applied to ensure consistency in the
party’s claim:
7
(2011) EWHC 773 (Fam)
8
(Civil appeal No. 36 of 2007)
Estoppels: if a party has previously accepted the validity of a marriage (for example by participating in
ceremonies or benefiting from marital rights), they may be stopped from later denying its validity.
Legal protection of rights: the doctrine prevents individuals from manipulating legal relationships to
their advantage by switching positions as it suits them. For instance, one cannot benefit from marriage
inheritance but claim it as valid in divorce or property proceedings
The law of approbation and reprobation requires sincerity to stand. in the case of w (falsely called R) v
R,9 the wife unsuccessfully petitioned for an annulment of her marriage contracted some twenty-six
years ago due to misunderstandings and disagreements with her husband. No sooner has proceedings
instituted than she commented on the husband’s incurable impotence. Sir Robert Phillimore (At p. 405)
emphasized that ‘’………. the law has always required sincerity, has required all reasonable promptitude
in seeking legal redress.
In Scott v Scott10 a marriage for companionship between two middle aged persons was upheld by Sach
S.J who refused to relief to the husband on grounds that he fully accepted the marriage for what it was
worth from the start. Relatedly, in Morgan v Morgan11 where the husband pleaded his own impotence
was debarred.
Taking advantage in legal proceedings upon the validity of marriage is based was expressed in Tindal v
Tindal12. Court of appeal held that the conduct of the wife in previous readings asserted the existence of
marriage for the purpose of obtaining maintenance. This was totally against public policy and to
entertain her prayer for nullity.
Even passive attitude in proceedings involving the validity of marriage may be regarded approbation.
Thus, in Woodland v Woodland (the times January 15 1959) a respondent in suit such a decree, could
not afterwards dispute the validity of the marriage.
In a nut shell, the doctrine oof approbate and reprobate is an important legal principle that help in
promoting consistence and fairness in legal proceedings. It prevents parties from taking inconsistence
positions in legal actions and decisions. Parties should be mindful of approbation and reprobation while
taking legal decisions in order to avoid negative legal consequences.
BIBILIOGRAPHY:
9
(1876) 1 PD 405
10
(orse.Fone) (1959) p.103;(1959) ALL ER 531
11
(1989) 1 ALL ER 539
12
(1953) P 63 (C.A)
The Constitution of the republic of Uganda, 1995
Atim, Grace K. and Innocent M. O. M. Nsubuga (2019). The Law of Divorce in Uganda: An Analysis of the
Legal Framework and Judicial Trends. University of Makerere, 2019
Giddens, A (1992). The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies.
Stanford University Press, 1992
Jane, E. et al. (2020). Understanding Marriage and Divorce in Modern Africa: A West-Eastern
Perspective. Routledge, 2020
Kagumire, D. M. (2015). Family Law in Uganda. Fountain Publishers, 2015
Muwanga, J. S. (2017). The Rights of Women in Marriage and Divorce under Uganda's Law. Uganda Law
College, 2017
Mwanja, K. M. (2010). Legal Aspects of Marriage and Divorce in Uganda. Uganda Law Review. 2010
Nabudere, D (2006). The Law of Marriage in Uganda: A Comparative Perspective. Fountain Publishers,
2006
Uganda Law Reform Commission. (2015). Reform of Marriage and Divorce Laws in Uganda: A Discussion
Paper. Uganda Law Reform Commission. 2015
