Wakilii

Tako v Apika (Divorce Cause 94 of 2022)

High Court · [2024] UGHCFD 27 · 2024 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection to divorce petition
Decision
Divorce petition dismissed for lack of domicile

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the petitioner, a South Sudanese national resident in Juba who relocated to South Sudan for employment, was not domiciled in Uganda at the time of filing the divorce petition. Domicile requires physical presence plus intention to remain indefinitely. Mere property ownership and payment of rent in Uganda do not establish domicile. The petition was dismissed for failure to satisfy the statutory requirement under section 1(a) of the Divorce Act.

Outcome

Divorce petition dismissed for lack of domicile

Facts

The petitioner, a South Sudanese national, married the respondent and the parties cohabited in Kampala at various locations including Bunga and Mengo, and briefly in the United States for three months. When misunderstandings developed, the petitioner relocated to South Sudan where he obtained employment, leaving the respondent in their rented apartment in Bunga. The petitioner invited the respondent to join him in Juba but she declined. In 2017 the petitioner returned to Kampala in an attempt at reconciliation. The petitioner owned leasehold land in Uganda and continued to pay rent for the respondent's accommodation. The petitioner averred in his affidavit that he is a Sudanese national and resident of Juba, South Sudan. The respondent raised a preliminary objection that the petitioner lacked domicile in Uganda as required by the Divorce Act.

Issues

  1. Whether the petitioner was domiciled in Uganda at the time of filing the divorce petition as required by section 1(a) of the Divorce Act Cap. 249.

Orders

  • Preliminary objection upheld.
  • Petition dismissed.
  • No order as to costs.

Rules and key headnotes

Family Law — Divorce — Domicile Requirement — Statutory Precondition
No decree for dissolution of marriage may be made unless the petitioner is domiciled in Uganda at the time the petition is presented, as required by section 1(a) of the Divorce Act Cap. 249.
Family Law — Divorce — Domicile — Definition and Elements
Domicile is the place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home to which that person intends to return and remain even though currently residing elsewhere. It depends on the physical fact of residence plus the intention of remaining and must not be confused with nationality.
Family Law — Divorce — Domicile of Choice — Acquisition
A domicile of choice is acquired by being lawfully present in a country with the intention of remaining there indefinitely. The two elements of physical presence and intention must occur at the same time. A person may abandon an earlier domicile of choice if he or she ceases to have the intention to remain there indefinitely.
Family Law — Divorce — Domicile — Property Ownership Insufficient
Mere property ownership in a state does not automatically confer domicile on an individual. Where a petitioner has relocated to and is resident in another country, property ownership and payment of rent in Uganda do not establish domicile in Uganda.
Civil Procedure — Preliminary Objections — Nature and Effect
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit.

Legislation cited (1)

Cases cited (5)

  • Kiggundu v Awori (Divorce Cause No. 8 of 1998)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Kiyingi v Kiyingi (Civil Appeal No. 41 of 2004)
  • SRQQQ and SRRRR and Repatriation Commission [2002] AATA 510
  • Davies v Western Australia [1904] HCA 46

Full judgment

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

Tako v Apika (Divorce Cause 94 of 2022) [2024] UGHCFD 27 (6 June 2024)
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.