Constitutional court rejects reasonless divorce

In a 4-1 ruling, the Constitutional court has dismissed a petition challenging provisions of the Divorce Act that require couples to provide reasons before seeking dissolution of their marriages.

In the lead judgment, justice Hellen Obura said allowing divorces without inquiry into reasons would violate the spirit of the Constitution and deny parliament the opportunity to legislate on such a fundamental issue.

“The norms, values, and aspirations of the people of Uganda, as plainly stated in the Constitution, protect and preserve the family, marriage, and children,” Obura wrote.

She noted that granting no-fault divorces would amount to overhauling divorce laws without public participation.

“Any change that overhauls the divorce law in Uganda should be done through a legislative process that entails wide consultation with all stakeholders,” the judgment reads.

The petitioners, including Innocent Ngobi, Nicholas Opiyo, Isaac Mugerwa, Dr Busingye Kabumba, and Stella Nakagiri, argued that sections 4, 5, 6, 7, 8, 30, 33, and 38 of the Divorce Act Cap. 249 were unconstitutional, as they compel parties to provide reasons for divorce.

They contended that marriage is based on mutual consent, and either party should be able to end it unilaterally. They also challenged provisions that protect only the wife’s property during pending divorce proceedings.

Justice Obura rejected the petition, emphasizing that consent in marriage was historically intended to protect women. She warned that making divorce as easy as the petitioners proposed would threaten social order in Uganda, a largely religious country.

However, the court agreed with the petitioners that provisions safeguarding only the wife’s property during separation were discriminatory. Obura suggested amending the law to extend these protections to husbands.

The judgment was supported by justices Asa Mugenyi, Moses Kawumi Kazibwe, and Eva Luswata. At the same time, Fredrick Egonda-Ntende dissented, arguing that courts should not inquire into the reasons for a divorce once consent has broken down. However, he agreed that property protections should apply to both spouses.