Wakilii

Asio v Opul (Matrimonial Cause 167 of 2020)

High Court · [2023] UGHCFD 132 · 2023 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of marriage heard ex parte after respondent failed to file answer
Decision
Marriage dissolved; petitioner granted physical custody of minor children with shared legal custody; equal maintenance obligations imposed on both parents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dissolved the marriage on grounds of desertion and cruelty. The respondent deserted the matrimonial home in 2012 and never returned despite reconciliation attempts. His failure to provide for the children's welfare and denial of conjugal rights for ten years constituted cruelty. The petitioner was granted physical custody of the two minor children with legal custody shared by both parents. Each parent was ordered to contribute 50% towards maintenance of all three children including the eldest who had reached majority but remained in school.

Outcome

Marriage dissolved; petitioner granted physical custody of minor children with shared legal custody; equal maintenance obligations imposed on both parents

Facts

The petitioner and respondent married on 20 September 2003 at Our Lady of Africa Mbuya and lived together at Bugolobi flats. They have three children: Divine Dorothy Opul (18 years), Seepta Serena Opul (17 years), and Davidson Solomon Opul (11 years). In January 2012, the respondent deserted the matrimonial home and moved to a property in Muyenga. Family meetings in 2015 and 2016 failed to reconcile the parties, with the respondent claiming unidentified persons wanted to kill him using the petitioner. The respondent also accused the petitioner of witchcraft and ceased providing for the children's welfare. The petitioner has been solely responsible for the children since 2012. Summons to file an answer was served on the respondent in December 2020 but he failed to file a defence. The matter proceeded ex parte.

Issues

  1. Whether there are grounds for divorce.
  2. What remedies are available to the parties.

Orders

  • The marriage between Caroline Asio and Dickson Opul is dissolved on account of desertion and cruelty.
  • A decree nisi is granted.
  • The matrimonial property in Bugolobi flats block 8, Nakawa district shall be retained by the petitioner.
  • Legal custody of Scepter Serena Opul and Davidson Dorothy Opul is granted to both the petitioner and respondent but the petitioner shall have physical custody.
  • The respondent shall have the right to spend time with the children anytime he wishes subject to one week notice to the petitioner, it being understood that the wishes of the children shall be taken into consideration.
  • The petitioner and respondent shall each contribute 50% towards the children's maintenance including the maintenance of Divine Dorothy Opul until they all finish school and are able to fend for themselves.
  • The respondent shall bear the costs.

Rules and key headnotes

Family Law — Divorce — Grounds — Desertion
Desertion occurs where a spouse leaves the matrimonial home with an intention not to return, or when parties still stay together but one spouse has withdrawn from the other, and this continues for a period of two years or more. Desertion may be the physical leaving of the matrimonial home or leaving the marriage although without leaving the home.
Family Law — Divorce — Grounds — Cruelty
In determining whether conduct amounts to cruelty, it is the effect of the conduct rather than its nature which is of paramount importance. The whole matrimonial relationship must be considered. A parent who is alive but chooses to leave the burden of providing for the children on the other parent acts with emotional cruelty to both the children and the other parent. Denial of conjugal rights for an extended period may amount to mental and psychological torture constituting cruelty.
Family Law — Matrimonial Property — Division on Dissolution
Marriage alone does not grant property rights. A spouse must have contributed either in monetary terms or non-monetary terms to the acquisition of matrimonial property. Such indirect contribution cannot be assumed and must be proved. Where a couple appears to own two properties each now occupied by either spouse, the court may in the interest of justice order that each spouse retain the property they occupy.
Family Law — Custody — Legal and Physical Custody Distinguished
Parents hold the primary right to custody of their children and both parents have similar and equal rights. Legal custody may be granted to both parents while physical custody is granted to the parent who has been staying with the children. The non-custodial parent shall have the right to spend time with the children subject to reasonable notice and the children's wishes being taken into consideration.
Family Law — Maintenance — Duty to Maintain Children Beyond Age of Majority
Although a child ceases to be a minor at age 18, where young adults between 18 and 25 years are still in school and unable to cater for themselves, both parents have the duty to maintain them until they finish school. The welfare principle governing decisions concerning children demands that financially capable parents must cater for the needs of their children irrespective of where the children are.
Civil Procedure — Ex Parte Proceedings — Effect of Failure to File Defence
Where a respondent is served with summons to file an answer to a petition but opts not to file a defence, the facts stated in the petition are not denied and the respondent is deemed to have admitted all the petitioner's pleadings, although the claims themselves must pass probity.
Family Law — Divorce — Standard of Proof
The burden of proof in divorce cases is on the party that alleges misconduct. Because of the effect of divorce on the divorcing couple, their children, and their families, although divorce cases are civil in nature, the standard of proof is slightly higher than in other ordinary civil cases in which it is only on the preponderance of probability, although it is not as high as in criminal cases where proof must be beyond reasonable doubt.

Legislation cited (14)

Cases cited (17)

  • Oloka Onyango and Others v Attorney General (Constitutional Petition No. 6 of 2014)
  • Massa v Achen [1978] HCB 279
  • Massa v Achen [1978] HCB 279
  • Uganda Association of Women Lawyers (FIDA) and 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Redpath v Redpath and Milligan [1950] 1 All ER 600
  • Habyarimana v Habyarimana [1980] HCB 139
  • Kayhul v Kayhul (Divorce Cause No. 123 of 2016)
  • Fitzgerald v. Fitzgwalda : (1864). L.R. I P. L D. at p. 658
  • Jacksoit v. Jacksoid [1995]-P. at p. 178
  • Namukasa v Kakondere (Divorce Cause No. 30 of 2010)
  • Muwanga v Kintu (High Court Divorce Appeal No. 135 of 1997)
  • Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009)
  • Kivuitu v Kivuitu [1990-1994] EA 270
  • Brossy V Brossy (2012) ZASCCA
  • Mark Siduda Trevor (an infant) (Family Cause No. 213 of 2014)
  • Rwabuhemba Tim Musinguzi v Harriet Kamakune (Civil Application No. 142 of 2009)
  • In the matter of Deborah Joyce Alitubeera (Civil Appeal No. 70 of 2011)

Full judgment

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Asio v Opul (Matrimonial Cause 167 of 2020) [2023] UGHCFD 132 (6 February 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.