Wakilii

Johan Dreegerbreak v Kerin Coolen and Another (Divorce Cause 11 of 1992)

High Court · [1992] UGHC 98 · 1992 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of marriage on grounds of adultery
Decision
Marriage dissolved by decree nisi

Observed later treatment

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Holding

The High Court held it had jurisdiction to dissolve the marriage where the petitioner, a Belgian national, proved domicile of choice in Uganda through residence of almost three years, property ownership, investment plans, and intention to remain indefinitely. The court found adultery proved through circumstantial evidence: the co-respondent stayed overnight in the matrimonial bedroom for three weeks while the petitioner was away, corroborated by the housemaid's testimony and the respondent's admission. The petition was granted and a decree nisi issued dissolving the marriage.

Outcome

Marriage dissolved by decree nisi

Facts

The petitioner, a Belgian national aged 29, married the respondent on 30 June 1988 in Antwerp, Belgium. After the marriage they lived in several countries and eventually in Kampala at Bunga and later Kololo. In December 1991, the petitioner travelled to London and Los Angeles on business for three weeks. He returned earlier than expected on 21 December 1991 without informing his wife. Upon arrival at 3pm, he found his wife and the co-respondent sitting together in his house. When questioned, the respondent admitted having an affair with the co-respondent. The petitioner's housemaid testified that during the petitioner's absence, the co-respondent stayed at the house every night, slept in the master bedroom with the respondent, and she washed his clothes. The petitioner immediately ordered both to leave and conjugal cohabitation ceased. The respondent did not contest the petition or call evidence at the hearing.

Issues

  1. Whether the High Court has jurisdiction to entertain this divorce petition where the petitioner is a Belgian national.
  2. Whether the petitioner has acquired domicile of choice in Uganda.
  3. Whether sufficient cause has been established to justify an order for divorce decree nisi.
  4. Whether the respondent committed adultery with the co-respondent.

Orders

  • Petition granted.
  • Divorce Decree Nisi dissolving the marriage between the petitioner and the respondent do issue forthwith.
  • No order as to costs.

Rules and key headnotes

Family Law — Divorce — Jurisdiction — Domicile of Choice — Foreign National
A court has jurisdiction to entertain a divorce petition under the Divorce Act Cap 215 s.2(a) only if the petitioner is domiciled in Uganda at the time the petition is presented. A foreign national can acquire domicile of choice in Uganda by proving both physical residence and a settled intention to remain permanently, evidenced by property ownership, investment plans, and expressed intention to apply for citizenship at the requisite time.
Family Law — Domicile — Standard of Proof — Change from Domicile of Origin to Domicile of Choice
A change from domicile of origin to domicile of choice is a serious matter requiring a high standard of proof. The petitioner must prove both the fact of residence in the new country and the intention of continuing to reside there indefinitely. The intention must be a present intention to reside permanently, unlimited in period but not necessarily irrevocable in character.
Family Law — Divorce — Recognition of Foreign Marriage — Dissolution under Ugandan Law
A marriage solemnised outside Uganda in accordance with the law of the place of solemnisation and recognised under Ugandan law can be dissolved under the Divorce Act. A marriage contracted before a Registrar abroad is one of the marriages recognised under the Marriage Act s.27.
Family Law — Divorce — Ground of Adultery — Husband's Right to Petition
Under the Divorce Act Cap 215 s.5(1), a husband is entitled to petition for dissolution of marriage on the ground that since solemnisation of marriage his wife has been guilty of adultery. This is the only ground on which a husband may petition for divorce under the Act.
Evidence — Adultery — Circumstantial Evidence — Standard of Proof
Adultery need not be proved by direct evidence as it is usually committed in secret. Association coupled with opportunity and evidence of illicit affection or familiarities creates an inference upon which a court can find adultery. The standard of proof is on the balance of probabilities, not beyond reasonable doubt.
Family Law — Divorce — Adultery — Condonation and Connivance — Cessation of Conjugal Cohabitation
Where a petitioner learns of adultery and immediately sends the adulterous spouse away, thereby discontinuing conjugal cohabitation, the petitioner has neither connived at nor condoned the adultery. In the context of the AIDS epidemic, a petitioner cannot be blamed for failing to reconcile where adultery is proved, as it is a matter of life and death.

Legislation cited (3)

Cases cited (8)

  • Taylor v Taylor [1961] TLR 737
  • Jolei Scagliosi v Renzo Scagliosi (Divorce Cause No. 1 of 1990)
  • Baker v Baker [1950] 41J
  • Field v Field [1964] EA 46
  • Thornhill v Islay Thornhill and Another [1965] EA 268
  • Aslanidis v Aslanidis and Schumacher [1967] EA 10
  • Gulbenkan v Gulbenkian [1937] 25 TL 46
  • Edward Kakukika v Miet Yudesi Kyoyanga [1972] ULR 336

Full judgment

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Johan Dreegerbreak v Kerin Coolen and Another (Divorce Cause 11 of 1992) [1992] UGHC 98 (22 October 1992)
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.