Wakilii

Nabasirye v Ssejjongo (Divorce Cause 221 of 2021)

High Court · [2023] UGHCFD 153 · 2023 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance divorce petition seeking dissolution of marriage, custody of children, and division of matrimonial property
Decision
Marriage dissolved by decree nisi; joint custody of children granted to both parties; matrimonial property divided 85% to respondent and 15% to petitioner

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Holding

The court dissolved the marriage on the ground of cruelty, finding that the respondent's consistent alcoholism caused the petitioner severe emotional distress and mental anguish. Joint custody of the two children was granted to both parents with shared maintenance responsibilities. The matrimonial property was divided 85% to the respondent (who purchased the land before marriage and financed construction) and 15% to the petitioner in recognition of her monetary and non-monetary contributions to the home.

Outcome

Marriage dissolved by decree nisi; joint custody of children granted to both parties; matrimonial property divided 85% to respondent and 15% to petitioner

Facts

The parties married on 1 October 2016 at St. Charles Lwanga Catholic Parish, Ntinda, and had two children aged 9 and 2 years. The petitioner alleged that the respondent was an alcoholic who spent nights in bars, returned home in the wee hours, and on one occasion left the door open exposing the family to thieves. She presented video evidence of the respondent in a severely intoxicated state, crawling on the floor and blacking out. The petitioner claimed she provided most of the family maintenance with little support from the respondent. The respondent denied excessive drinking, stated he provided for the family, and claimed the petitioner deserted him in November 2021. The matrimonial home was built on land the respondent purchased before marriage; he took a salary loan to complete construction. The petitioner contributed to furnishing and some construction materials.

Issues

  1. Whether the facts give rise to grounds for divorce?
  2. Whether the property constitutes matrimonial property and if so, should it be equally distributed?
  3. Whether either party is fit and proper to have custody of the children?
  4. What remedies are available to the parties?

Orders

  • A decree Nisi is hereby pronounced dissolving the marriage between the Petitioner and the Respondent.
  • The Petitioner and the Respondent shall have joint custody of the children.
  • The Petitioner and the Respondent shall have the responsibility to provide maintenance of their children while in their custody.
  • Both parties shall equally educate their children.
  • The Respondent is entitled to 85% of the land at Kiteezi on Plot 305 Block 113 Land at Kyadondo while the Petitioner shall be entitled to 15%.
  • Each Party to bear their own costs.

Rules and key headnotes

Divorce — Grounds — Cruelty — Alcoholism as Mental Cruelty
Consistent alcoholism can amount to cruelty even in the absence of physical violence where the alcoholic spouse's behavior causes severe emotional distress, humiliation, or mental suffering to the other spouse, and such behavior is grave and weighty enough that the petitioner cannot reasonably be expected to continue living with the respondent.
Divorce — Cruelty — Prior Knowledge of Behavior
The fact that a spouse had knowledge of the other spouse's behavior (such as drinking) at the start of the relationship does not preclude a finding of cruelty where that behavior causes mental anguish during the subsistence of the marriage, nor does it mean the petitioner should endure such behavior simply because she had prior knowledge of it.
Divorce — Test for Cruelty — Objective and Subjective Elements
The test for cruelty requires both an objective element (would any right-thinking person conclude that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him) and a subjective element that enables the court to consider the cumulative effect of the behavior on the particular petitioner, taking into account the whole circumstances and the characters and personalities of the parties.
Child Custody — Welfare Principle — Paramount Consideration
In determining custody of children, the welfare of the child is the paramount consideration, meaning that when all relevant facts, relationships, claims, wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare, which is of first importance and rules upon or determines the course to be followed.
Matrimonial Property — Division — Pre-Marriage Property Improved During Marriage
Property that a party owns before contracting a marriage remains his property even upon dissolution of the marriage and does not become matrimonial property; however, where such property is improved upon and developed after the marriage was contracted, the other spouse may be entitled to compensation for monetary and non-monetary contributions made to the improvement of that property.
Matrimonial Property — Non-Monetary Contributions — Homemaking and Childcare
Non-monetary indirect contributions by a spouse, including preparation of food, organizing children for school, and generally enhancing the welfare of the family, amount to substantial indirect contributions to matrimonial property and must be considered in the division of property upon divorce.

Legislation cited (19)

Cases cited (15)

  • Uganda Association of Women Lawyers (FIDA) & 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Habyarimana v Habyarimana (1980) HCB 139
  • Lang v Lang [1955] AC 402
  • Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766
  • Owens v Owens [2017] EWCA Civ 182
  • J v C [1970] AC 668
  • Twesiga (Infant) (Miscellaneous Application No. 4 of 2008)
  • Rwabuhemba Tim Musinguzi v Harriet Kamakume (Civil Application No. 142 of 2009)
  • Nakaggwa v Kiggundu (1978) HCB 315
  • Charman v Charman (No. 4) [2007] EWCA Civ 503
  • Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No. 10 of 2009)
  • Essa v Essa (Civil Appeal No. 101 of 1995)
  • Rimmer v Rimmer [1953] 1 QB 63
  • Muwanga v Kintu (Divorce Appeal No. 135 of 1997)
  • Kivuitu v Kivuitu [1990-1994] EA 270

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nabasirye v Ssejjongo (Divorce Cause 221 of 2021) [2023] UGHCFD 153 (31 May 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.