[2024] UGHCFD 36

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA [FAMILY DIVISION]**

# **DIVORCE CAUSE NO. 111 OF 2022**

## **BUAGU NDUGGA MUSAZI ::::::::::::::::::::::::::::::::::: PETITIONER**

### **VERSUS**

## **NANYONGA SUSAN ::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## **JUDGEMENT BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

## 1.0 **Introduction.**

- 1.1 Buagu Ndugga Musazi hereafter referred to as the Petitioner filed Divorce Cause No. 111 of 2022 against Nanyonga Susan seeking the following orders; - i. That the marriage of your humble Petitioner with the Respondent be dissolved. - ii. The Custody of the children be granted to your humble Petitioner.

iii. The costs of the petition be provided for.

- 1.2 The Petition and Summons to answer the petition were served upon the Respondent who did not file any response. The respondent was served on Friday 15th June, 2023 following a grant of an application for substituted service. Accordingly, the Petitioner prayed that the Petition be set down for hearing *exparte* as per the provisions of **Order 9 Rule 11(2) of the Civil Procedure Rules SI 71-1.** The matter was heard *exparte.* The Petitioner testified on oath. - 1.3 The Petitioner was represented by Counsel Owakubariho Oscar Boban of M/S Oscar Associated Advocates, Kawuma Street, Bweyogerere.


## 2.0 **Background.**

- 2.1 On 15th December, 2010 the Petitioner and the Respondent solemnized their marriage at the clerk of circuit court, Townson, state of Maryland, Baltimore County, USA. A marriage record was entered under number 032010-059185. After conducting the marriage, the Petitioner lived and cohabited with the Respondent in Maryland, Baltimore County, USA up to 2019 at which time they were blessed with four children aged 15, 10, 6 and 3 years at the time of filing the Petition. - 2.2 That on 23rd August, 2019 when the Petitioner had returned from one of his usual Uganda visits, he found that the Respondent had abandoned their marital Maryland residence and taken away the children which actions have led to a separation between them up to this day. - 2.3 The Petitioner contended that he tried to reach out to the Respondent over these unexplained actions but she was not cooperative and instead filed for custody of the children in the circuit court, Baltimore Court against the Petitioner. In November 2020, the Petitioner managed to get visitation rights to see the children for the first time since 2019 and in January 2021, the Petitioner was able to see his children minus the last born. - 2.4 The Petitioner further contended that the Respondent has avoided him and denied him access to their children while on a visit in Uganda. The Petitioner at that time was residing in Kabalagala he tried reaching out through the mother-in- law and sister –in- law but nothing positive yielded. He was forced


to report to various authorities including police in Uganda but this all failed. The Petitioner contends that he has been constructively deserted by the Respondent. He avers that owing to the desertion, cruelty, negligence and irresponsibleness of the Respondent, there has been an irretrievable breakdown of the said marriage between the Petitioner and the Respondent. Which marriage he wants to be dissolved.

# **3.0 Issues for Determination before this court.**

- 3.1 The court is empowered under **Order 15 Rule 5 of the Civil Procedure Rules SI 71-1**, to amend or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties. The court therefore amends the issues as follows; - **1. Whether there is a recognized Marriage between the Petitioner and the Respondent under the Marriage Act of Uganda, Cap. 146?** - **2. Whether this court has the Jurisdiction to entertain this matter?** - **3. Whether the Petitioner is entitled to the prayers sought (any grounds for divorce?)** - **4. Whether the Petitioner should be granted Custody of the Children?** - **5. What remedies are available to the parties?** - **5.0 Submissions by Counsel.**


5.1 I have perused and analysed the Petitioner's written submissions. I evaluated and examined the petition and the documentary evidence, as required by law and all have been considered in the determination of this Petition.

# **4.0 Determination by Court.**

**Issues 1& 2. Whether there is a recognized Marriage between the Petitioner and the Respondent under the Marriage Act of Uganda, Cap. 146 and whether this court has the jurisdiction to entertain this matter.**

- 4.1 The most widely accepted definition of marriage in the law is that of *Hyde Versus Hyde and Woodhouse (1866) LR 1 PD 130 at P. 133 Per Lord Penzance.* "The voluntary union for life of one man and one woman to the exclusion of all others". - 4.2 If a couple marry, then they are subject to the laws governing marriage, regardless of their intentions or choices. - 4.3 There are known requirements for a Divorce petition to succeed and these among others include; proof of a valid marriage, proof of domicile, the grounds of divorce as per the law, no condonation, collusion or connivance exists and current irretrievable breakdown of marriage and these are always taken consideration of slightly or not. - 4.4 Before this court can issue a Decree Nisi dissolving a Marriage between the Petitioner and the Respondent, it must have determined first that a marriage existed between the Petitioner and the Respondent recognized under the **Marriage Act of Uganda, Cap. 146.** Therefore, before this court can consider the grounds for divorce in this petition, it will first determine whether there was a valid marriage


between the Petitioner and Respondent under the Marriage Act of Uganda.

- 4.5 The Petitioner produced a copy of his Marriage certificate from the state of Maryland Baltimore County USA where he and the Respondent got married on 15th December, 2010 at 2:25 pm marked annexure **"PEX1"** on his petition. - 4.6 The Petitioner in his testimony before this court also contended that he conducted a Marriage in Uganda in Luwero District in August 2008 at the Anglican Church of Uganda in Kigavu. The Petitioner did not produce a Marriage Certificate in evidence of this. - 4.7 **Section 31 of the Marriage Act, Cap. 146** provides that, *"every certificate of marriage which shall have been filed in the office of the Registrar of any district, or a copy of the certificate of marriage, purporting to be signed and certified as a true copy by the registrar of that district and every entry in a Marriage Register Book or a copy of the entry, certified as prescribed in this section, shall be admissible as evidence of the marriage to which it relates, in any court of justice or before any person having by law or consent of parties authority to hear, receive and examine the evidence".* - 4.8 Without evidence which includes a Certificate of Marriage for the wedding alleged to have been performed in Uganda, there is no proof that any marriage was conducted between the Petitioner and the Respondent in August 2008 apart from the one that was conducted in Maryland USA. - 4.9 Besides a copy of marriage certificate from Baltimore, Maryland, USA, there was no record of their marriage adduced before this court in the register of marriage in


Uganda and yet this was strong evidence to prove the presumption of marriage.

- 4.10 Whereas citizens of Uganda or dual citizens of Uganda and another Jurisdiction conduct a Marriage under the laws of another country, they must bring it into Jurisdiction by having it registered at the Uganda Registration Services Bureau. The parties in this case do not have proof that this Marriage was ever registered in Uganda. - 4.11 **Section 32 of the Marriage Act** provides that a marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration in any place other than the office of a registrar of marriages or a licensed place of worship, except where authorised by the Minister's licence or without the registrar's certificate of notice or Minister's licence duly issued. - 4.12 In Uganda, all the Chief Administration Officers are Registrars of their districts. Every entry made in the Registrar Book has got to be filed with the Registrar of Marriages on a monthly basis. - 4.13 The court recognizes that a valid Marriage was contracted between the Petitioner and the Respondent in Maryland USA, however, the said Marriage is not duly recognized under the Marriage Act, Cap. 146 as it was neither conducted under this law nor registered by the Registrar of Marriages for it to be dissolved under the Divorce Act, Cap. 144.

# **On Domicile.**

4.14 **Section 2 of the Divorce Act, Cap. 144** provides that; "Nothing in this Act shall authorise-(a) the making of any decree of dissolution of marriage unless the petitioner is


domiciled in Uganda at the time when the petition is presented.

- 4.15 In his testimony to this court, the Petitioner testified that he is a Professor at Morgan States University and resides both in Uganda and the United States of America. The Petitioner stated that he ordinarily stays in Uganda for 3 weeks in December and for a total of about two and a half months of the year, at times. - 4.16 The petitioner further testified that he pays his taxes in the United States of America and his wife and children also reside in the USA. Until 2019, the couple lived together with their children in the United States of America. - 4.17 It was observed during his testimony that the parties are both habitually resident in USA. A person is habitually resident somewhere if there is "permanence or stability" to their living there and that place must be "the centre of the person's interests". One can only have one habitual residence at a time. Whether or not someone is habitually resident in a place is a question of fact. - 4.18 Domicile involves high degree of permanence than habitual residence. A person must live in the country and intend to make it their permanent home, thereby creating a domicile of choice. - 4.19 The Petitioner was not able to sufficiently prove to this court that he is domiciled in Uganda other than stating that he resides in Kabalagala once he visits Uganda to 3 weeks in December, and maybe for a period of two and half months in total a year, which again was never proved.


- 4.20 The court must also consider the effect of the other orders sought. The Petitioner prayed for custody of his four children, three of whom are American citizens and residing in the USA. - 4.21 In order for a divorce to proceed, the court must have jurisdiction. While this is not an issue for people who live in Uganda and whose marriage was celebrated in Uganda, it can be problematic in cases where one or both parties lives or has lived overseas. Similar issues apply when a person obtains a divorce in another jurisdiction, as specific rules apply to whether that divorce will be recognised in a particular jurisdiction. - 4.22 **Could it be Forum shopping?** Where the parties have close connections to more than one country, they may have the ability to pursue a divorce in one of several different jurisdictions, this is increasingly common, as people move internationally more than ever before. Yet the law on divorce differs considerably across different countries, from unilateral divorce on demand, to fault based divorce, to divorce after a period of separation, or a combination of these. Moreover, the financial consequences of the divorce, or the way in which child disputes are addressed, maybe significantly different in one country compared to another, consequently, it is common for wealthy parties to go on "forum shopping'; they look at which countries have jurisdiction to hear their case and file in the jurisdiction that is more favourable for them. - 4.23 Jurisdiction is a creature of statute. The court must consider its territorial jurisdiction in considering this Petition. It has considered factors such as the residence and domicile of the


spouses who both primarily reside in the USA, the location where the marriage occurred which is Baltimore USA, or where the grounds for divorce arose which is also Baltimore Maryland USA, and the location of all property owned by the parties.

- 4.24 This issue is therefore answered in the negative, the marriage between the Petitioner and the Respondent is not a recognized marriage under the **Marriage Act of Uganda, Cap 146** and this court does not have the Jurisdiction to entertain this matter as the Petitioner did not sufficiently prove the requirements of divorce in Uganda under the Divorce Act, Cap. 144. - **5.0 Conclusion:** - 5.1 In as much as divorce should be relatively painless, enabling people to come out of it with a decent relationship with the former spouse and a clear vision of their future life, I find that the Petitioner's case has not been proved, he has not satisfied this court that there was a marriage celebrated in Uganda, he is domiciled in Uganda and that this court has jurisdiction to dissolve the marriage conducted in Baltimore, Maryland USA under the Uganda laws. - 5.2 Therefore under the provisions of Section 7 of the Divorce Act, Cap. 144, I hereby dismiss this petition with no order as to costs.

# *Dated, signed and delivered via email this 22nd day of July 2024.*

**....................................... CELIA NAGAWA JUDGE**