By Jocelyn Edwards
Will the Marriage and Divorce Bill finally give women hope?
Sitting in a legal aid clinic on Mawanda Road in Kamwokya, a Kampala City suburb, 25-year-old Harriet pulls out a handkerchief to wipe her tears as she relates how the man she considers her husband threw her out last night. Since the man took up with a new woman, she explains, she had been forced to sleep in the sitting room of their home in Rubaga. But yesterday, he packed all her clothes and told her it would be her last night in the house she laid the bricks for herself. The other woman is going to be their 6-year-old child’s ‘new mother, he has told her.
Unfortunately, since Harriet was co-habiting with the man and not legally married she has no legal recourse. Despite the fact that she contributed the little money she earned from her job as a juice maker to provide for the man and their child and has lived with him for eight years, she has no legal claim on the home that they built together and shared.
Harriet will have no hope in court, explains Roselyn Nsenge, an attorney at the free legal clinic run by the Association of Women Lawyers (FIDA). ‘It’s a bad case, she says. The most that the staff at the clinic can do is try to arbitrate between Harriet and her husband and appeal to his sense of moral decency, hoping that he will be convinced to allow her to remain at home until she gets on her feet.
That could change soon however. Parliament in Uganda is considering a bill which could transform the economic situation Harriet and many other women find themselves in upon breakdown of their relationships.
The Marriage and Divorce Bill, unveiled in early October, establishes equitable distribution of property between spouses upon divorce, providing co-habiting couples with the same rights to property as married people; for the first time in Uganda, it also establishes marital rape as a crime. The wide ranging piece of legislation outlaws the practice of widow inheritance and makes it an offense to demand the return of bride price upon dissolution of a marriage. The bill also allows women to divorce their husbands if they become impotent.
By recognising for the first time the non-monetary contributions of women towards a marriage, the bill represents an about-face on the way that assets are divided upon divorce. Monicah Amoding is the coordinator of the Uganda Women Parliamentarians Association (UWOPA), one group that has been lobbying for the bill. Currently, ‘what tends to happen is that a woman goes out with nothing. You have had one, two, three children with someone, you have made a non-monetary contribution . . . that is not recognised. Eventually a woman walks out of marriage without a penny.’
Co-habiting women, a significant population in Uganda, are in an even more precarious position. 80% of marriages in the country start out as co-habitation arrangements. When those relationships breakdown, women like Harriet have little hope of gaining any of the property they may have contributed to.
Taking into account domestic work and management of the home when assessing matrimonial property, the law provides for a more even distribution between spouses.The bill ‘gives women and men equal rights to property, to power, to privacy and all the things that accrue in a marriage. That’s what is revolutionary. That has never happened in our society- that women get all the entitlements equal to men,’ says Amoding.
A piece of legislation more than four decades in the making, the bill has appeared in parliament in various incarnations before. As far back as 1960, a government commission recommended new legislation on marriage and divorce. More recently, the bill is the successor of the Domestic Relations Bill, which languished in parliament for almost five years and then died earlier this year. Legislators hope that by separating the regulations concerning marriage and divorce from those concerning domestic violence and addressing the concerns of Muslims elsewhere, in the Administration of Muslim Personal Law Bill, the bill will have a greater chance of getting passed. ‘Women have been trying for a very long time, for 45 years, for a comprehensive family law in this country. [MPs] will have made history as a parliament if they pass this major law,’ says Amoding.
But though it has not yet reached first reading, the law has already proved controversial, with religious leaders and MPs accusing it variously of everything from accelerating the breakup of the family to encouraging the sin of co-habitation. Catholic leaders have been some of the legislation’s strongest critics. Representatives of the Archdiocese of Kampala have told local media that the church will not accept the bill if it is passed. Fr. Andrew Kato Kasirye, the judicial vicar for the archdiocese, outlined the church’s objections to the bill in the New Vision in mid-October. ‘In the first place, it’s a contradiction. They talk about marriage then divorce. Marriage is forever. Marriage is a covenant and agreement to stay together yet divorce is the cutting of the agreement. The first thing they need to do is change the title of the bill so that it doesn’t use contradictory terms,’ he said.
And it’s evident from talking to men in Kampala that attitudes on the street present a stumbling block for the bill as well. Even in seemingly more liberal sectors, the idea that a woman should get an equitable share of marriage assets upon divorce struggles to gain traction. Many men, even urban professionals, regard the idea that the non-material contribution made by a wife should to be taken into account when dividing up property with skepticism.
Standing outside Nakawa Family Court where he is waiting to argue a case, long-time lawyer Joseph Oging says the bill contains many ‘obnoxious provisions’ that should be removed. The litigator handles many domestic relations cases, advocating for both men and women. Dressed in a crisp suit, Oging is staunchly against the even distribution of assets. ‘Dividing property is not acceptable because the man’s contribution to putting up property in most cases is over and above to [the woman’s]. For the little she put in she should deserve a simple package.’ But doesn’t the contribution she may have made cooking, cleaning and raising the offspring justify her getting more? ‘A man could hire a maid to take care of his children and pay her a salary, but that would not entitle the maid to a share in the property. The fact that she is a mother puts her position a little above that of a maid, but a handsome package should suffice, but not really sharing.’
Though the bill stipulates that a couple must be married for at least two years before divorce, many men are also concerned that the provisions for division of property will encourage gold-diggers, women who marry or with a man with money in mind. They fear the bill will start a cycle of women marrying and remarrying to make themselves rich. ‘Women are going take advantage of those few months or years that you have stayed with them to claim for half of the estate. Many unscrupulous women out there are going to take advantage of the law to fleece unsuspecting men,’ warns Oging.
Price of Tradition
Besides changing the economic status of women in the country, the bill also has the potential to decrease domestic violence. With about 34% of Ugandan women experiencing violence in the home, the rate of spousal abuse in the country sits above the international average.
Without the economic means to refund their dowries and afraid to go to their families for the money, many women stay with violent men. Patrick Ndira is the head of programs for Mifumi, an organisation that works with with victims of domestic violence in Tororo. ‘We come across very many women with very serious injuries. Many of them are left mentally impaired . . . some of them come in with broken limbs, some of them have walked in and they haven’t had a meal in three days.’ Bride price keeps many of them from leaving their husbands. ‘It’s sort of a threat that hangs over everybody’s head. Many men use it to exercise power since they know that (women) can’t afford to leave. It’s really not fair because it holds women in a hostage situation.’ By making it an offense to demand a refund of bride price upon marriage breakdown, the law could free many women trapped in violent marriages.
While the bill still allows for the voluntary giving of marriage gifts, some still feel it undermines traditional values. Buyaga County MP Barnabas Tinkasimire says that ‘good African culture’ is under attack by the law. Rather than causing violence in the home, bride price actually stabilises marriage, he believes. The exchanging of gifts between families is intended to bind a couple together. ‘It makes the marriage more solid; it makes the home more solid. It makes the two people come closer together and trust one another and love one another.’
Meanwhile, back in FIDA’s free legal clinic, Harriet coughs a little. After her former husband took up with his new girlfriend, she discovered that she had contracted HIV from him. She quit her job a while ago because he did not want her to meet other men at work. Now, with no income, her biggest worry is where she will stay tonight.With nowhere else to go, she walks back to her house hoping that the man proves generous and lets her stay there until she can start a new life.