By Diana Kintu
The Divorce Act Cap 144 has always required a spouse to provide a specific reason, or “ground,” to obtain a divorce. These included adultery, cruelty, or desertion for more than two years. Without proving one of these grounds, a divorce would not be granted.
However, in a recent decision, the Constitutional Court, presided over by five justices, introduced a new legal principle termed the “no-fault” divorce. This allows a couple to end their marriage simply by mutual consent, without blaming one party. The court dismantled the old system that required spouses to justify why the divorce should be granted.
The petitioners successfully advocated for a “no-fault” divorce system, where a marriage could be dissolved without proving wrongdoing. The court disagreed with the fault-based system, which demanded evidence of marital offences. It reasoned that since marriage is entered into with free consent, it should also be dissolved on the same basis. The judges noted that a marriage without consent is not an ideal environment for raising children. They further held that requiring spouses to prove grounds for divorce was archaic and violated Article 31(3) of the Constitution, which guarantees freedom of consent in marriage.
On gender equality, the court examined Sections 15, 16, and 18 of the Divorce Act, which had granted financial and property protections only to wives upon judicial separation. These provisions were found discriminatory. The court ruled that protections must now extend equally to husbands, ensuring both men and women enjoy the same rights to property and maintenance when a marriage ends.
This part of the judgment was delivered under Article 274 of the Constitution, which allows older laws to be interpreted to align with constitutional principles. The court did not strike out the sections but instead read them to include husbands, thereby promoting fairness.
Civil society organisations, including FIDA-Uganda and the Initiative for Strategic Litigation in Africa, joined the case as friends of the court, underscoring its public importance.
In conclusion, the court declared Sections 4, 5, 6, 7, 8, 30, and 13 of the Divorce Act Cap 144 inconsistent with the Constitution and therefore inapplicable under the current legal framework. It also ruled that Sections 15, 16, and 18 relating to property and protection orders were inconsistent with Articles 21(1), 21(2), and 31(1)(b) of the Constitution. However, these could be brought into conformity by making them applicable to both men and women.
This decision leaves room for future debate and possible legislative action by Parliament to further modernise Uganda’s divorce law. For now, the judgment safeguards the principle of free consent in marriage—both during its existence and at its dissolution.