The Marriage and Divorce Bill - A sharply divided Parliament reconvenes tomorrow, to debate a highly divisive draft legislation; The Marriage and Divorce Bill. Since the once shelved bill in 2009 was returned to the floor last Wednesday, the MPs have virtually disagreed on every single clause; from cohabitation as a form of marriage, contract marriages, bride price to sharing of property by couples.
'Cohabitation is an illegality that we must not address under this law. It is immoral, it is drama. You can't divorce if you have not been in marriage. I want a law that will discourage my daughter from cohabiting, because a cohabiting woman is ultimately a concubine,' Mbarara Municipality MP Medard Bitekyerezo told The Observer in an interview at the weekend.
However, some lawmakers contest the relevance of clauses 130 -133 that grant equal beneficial interests to cohabiting parties like those guaranteed to married couples. For instance, clause 133 of the bill provides that: 'Where, during the subsistence of a marriage or cohabitation, any property is acquired in the names of the spouses jointly or cohabitees jointly, there shall be a rebuttable presumption that the beneficial interests of the spouses or cohabitees are equal.'
Several lawmakers argue that these clauses are not in line with the Constitution, the religious sacred understanding of marriage as well as the African tradition. But leaders of the Uganda Women's Parliamentary Association (UWOPA) the major proponents of the bill are against such sentiments. 'If partners acquire property during the subsistence of the cohabitation, what do we do with that property when it comes to a time when they can no longer live together?' asked Betty Amongi, the UWOPA chairperson.
However, Amongi's argument is roundly opposed by MPs Anifa Kawooya (Sembabule Woman), Sylvia Namabidde (Mityana Woman), Flavia Rwabuhoro Kabahenda (Kyegegwa Woman) and Mariam Nalubega (Butambala Woman). 'We are all aware that cohabitation is a reality, but not recognized anywhere in our books of law. People deliberately choose to stay in cohabitation- how do we begin to talk about rights of a section of people that is not recognized in our laws,' Kabahenda said.
As Parliament tries to build consensus on the bill we understand that the UWOPA leadership is scheduled to meet the Speaker, the Justice and Constitutional Affairs Minister and the Attorney General to discuss some of the controversial clauses.
Meanwhile, several parliamentarians are also unhappy with clause 22 of the bill that provides for contract marriages. 'Contract marriages are not sustainable in our cultures, we don't have a record of [such a marriage] and therefore it can't be acceptable,' Kabula MP James Kakooza said.
'This clause is very vague, it makes marriage look like a commercial contractual arrangement yet marriage is about life and death,' says the Masaka Municipality MP, Mathias Mpuuga.
MPs are also evenly split on the clause on how to share property at the dissolution of a relationship.
'Two persons in contemplation of a marriage or cohabitation with each other or cohabiting or married may make an agreement with respect to the ownership of--(a) separate property of each spouse or cohabitee; (b) property acquired during the marriage or cohabitation; or (c) distribution of property acquired during the marriage or cohabitation,' reads clause 117 of the bill. Agreements made under this arrangement may be either oral or written.
However, the bill provides that spouses should have the capacity to acquire separate property during the subsistence of the marriage and this would always be taken into account for the purpose of the distribution of matrimonial property as well as the contribution of parties to the acquisition of the property. Clause 128 of the bill provides that for polygamous marriages, matrimonial property acquired by the husband and the first wife before the husband married the second wife shall be owned by the two parties.
And, the subsequent wives shall only take interest in the husband's remaining matrimonial property (50% of what is left), which is to be shared with all the wives in the relationship. But, as the debate on the bill resumes, lawyers have warned that MPs should refrain from treating marriage as a commercial relationship.
'It is good that the law tries to guarantee equal rights but it should retain the objective of treating marriage as a domestic relationship not a commercial one,' says Nicholas Opiyo, a legal consultant. Bugweri MP Abdu Katuntu adds that if the law treats marriage as a commercial arrangement, it will make it difficult for people to marry. 'We are likely to see more divorce suits like it is in the western world where marriage is looked at [as] a commercial arrangement,' he said.
By Sulaiman Kakaire and Sadab Kitatta Kaaya