Why A Separation Agreement May Be A Better Option As Opposed To Divorce In Uganda.

Divorce is the permanent termination of a legal or valid marriage by a court of law while Separation is an arrangement in which the parties to a marriage mutually agree to suspend their marital obligations. This may be through a written mutual separation agreement or Judicial Separation by court on grounds of cruelty, adultery or dessertion without reasonable excuse for two years or more, as stated under Section 14 of the Divorce Act cap 249.

However, as a way of protecting the sanctity of marriage, courts in Uganda are so reluctant to dissolve/terminate a legally established marriage until the grounds established under Section 4 of the Divorce Act (Adultery, Cruelty and dessertion) have been sufficiently proved as to have led to an irretrievable breakdown of the marriage.

According to court in Ayiko v Lekuru (DC No.0001 of 2015), irretrievable breakdown is said to exist where there is no hope of reconciliation between the parties and either one of them or both have lost interest in the marriage. Therefore when couples decide the marriage is irretrievably broken, filing for divorce initiates the legal process of dissolving such marriage and leading separate lives.

Sometimes however, there are religious, cultural or financial reasons for remaining married or parties may feel their  marriage is not truly over and believe they can reconcile at some future date. Separation therefore becomes a better option in achieving that and ultimately preserving the sanctity of the marriage institution. The other advantages associated with separation as oppossed to divorce are stated below;

  1. Room for reconciliation. Once finalized, divorce cannot be reversed. However, with separation, the parties may at a latter stage agree to move on with the marriage. This not only preserves the sanctity of the marriage institution but also restores harmony, joy and happiness within the family.
  2. The best interests of children. Courts in Uganda are enjoined to consider the best interests of the child in any matter affecting such a child ( the welfare principle as elaborated in the case of Pulkeria Nakaggwa v Dominiko Kiggundu (1978) H.C.B. 310.) Separation preserves such interests better with provisions like custody, visitation rights, mantenance, Dum-casta (where parties agree to live a chaste life) etc. As for Divorce, it may be hard or even impossible to enforce such provisions especially when both parties move on to find new partners. This also subjects children to possibly hostile step parents.
  3. Property rights and other benefits. Under Separation, the marriage subsists and therefore even when one partner dies, the other still has rights over all the property of the family together with any other benefits, like life or health insurance, that accrue by the fact of their marriage. On the other hand, such rights and entitlements are lost upon divorce.
  4. Religious or Cultural beliefs. Some couples may choose separation because their religious or cultural beliefs prevent them from divorcing yet they no longer wish to be together. In such instances, they may even agree to live under the same roof but in separate rooms. Considering that separation is about amicable agreement, the parties may not want to create any impression or suspicion on their children, family, religious institution or culture that something is wrong, hence separation becomes a better alternative. This not only preserves the children’s phsycological and emotional wellbeing but also prevents the couple from conflicting with their religious and cultural beliefs.

Conclusion.

While it is most likely not in the anticipation of any newly wedded couple to get a divorce or separation, it is an unfortunate reality for many that may nolonger find ways to make their relationships work. However, even in such instances, couples ought to be careful when exploring options. Those willing to continue having contact with each other perhaps due to some of the considerations stated above may only consider to separate  and divorce only where circumstances render the relationship irretrievably broken down. Where they are not sure, they may seek counselling services or legal advise.

INNOCENT KABAHIMA

Kabahima@lawyers-uganda.com