In Islam, Nikah/ Marraige is a contract between two people.

Both the
groom and the bride are to consent to the marriage of their own free
wills. A formal, binding contract – verbal or on paper– is considered
integral to a religiously valid Islamic marriage, and outlines the rights and
responsibilities of the groom and bride.

Quran 24:32 provides to the effect that “Marry off the ˹free˺ singles among
you, as well as the righteous of your bondmen and bondwomen. If they are
poor, Allah will enrich them out of His bounty. For Allah is All-Bountiful, All-
Knowing.

Marriage is a contract in Islam and is said to take place after there

has been a valid offer and acceptance. In a social context it is said to
be the setting for the purpose of legalising sexual intercourse and the
procreation of children.

Divorce under Islamic Law.

Introduction.

Firm union of the husband and wife is a necessary condition for a happy
family life. Islam therefore, insists upon the subsistence of a marriage and
prescribes that breach of marriage contract should be avoided. Initially no
marriage is contracted to be dissolved but in unfortunate circumstances the
matrimonial contract is broken. One of the ways of such dissolution is by
way of divorce. Under Islamic law the divorce may take place by the act of
the parties themselves or by a decree of the court of law. However, in
whatever manner the divorce is affected it has not been regarded as a rule
of life. In Islam, divorce is considered as an exception to the status of
marriage. In the laws of Islam (sharia) there are three kinds of divorce, each
with separate rules.
LEGAL PERSPECTIVE OF DIVORCE

Article 129(1)(d) of the Constitution of Uganda as amended, Recognizes

Qadhis courts to adjudicate matters related to Marriage, Divorce, inheritance of
the property and guardianship, as may be prescribed by parliament

Section 2 of the Marriage and Divorce of Muhammadans Act Cap 252,

Recognizes Divorce under Islamic Law and provides to the effect that All
marriages between persons professing the Muhammedan religion, and all
divorces from such marriages celebrated or given according to the rites and
observance of the Mohammadans religion customary and usual among the
tribes or sect in which the marriage or divorce takes place, shall be valid and
registered as provided in this Act.

Section 5 of the Marriage and Divorce of Muhammadans Act Cap

252 ,provides to the effect that Marriage and Divorces shall be registered where
the application for registration shall be made within one Month from the date of
the marriage or Divorce, before a registrar in the manner and by the persons
following, in case of divorce, other than the kind know as khula, by the man who
effected the divorce and of the kind known as Khula, by the parties to the
Divorce jointly, but if the woman is a purdah- nishen the application may be
made on her behalf by her duly authorized Vakil.

Section 18 of the Marriage and Divorce of Muhammedans Act, provides

the Jurisdiction in Divorce cases and states that nothing in Divorce Act shall
authorize the grant of any relief under the act where the marriage of the parties
 has been declared valid under this Act, but nothing in this section shall prevent
any competent Court from granting relief under the Muhammedans Law. And
the High Court and any other court to which jurisdiction is specially given.

The Quran lays out a legal system for divorce proceedings. There needs to be a
declaration for divorce being made. The parties are then advised to carry out
some mediation sessions in order to try and resolve the matter. Following this,
there should be 3 months waiting period given, known as "iddat". This takes
place in order to allow for reconciliation and determination of paternity of
unborn children.

WAYS OF AQUIRING DIVORCE UNDER ISLAMIC LAW.

Divorce is the formal dissolution of a marriage.In Islam, there are two

ways of divorcing i.e. Extra Judicial Divorce and Judicial Divorce.

1. Judicial Divorce
2. Extra judicial Divorce

Judicial divorce is where parties choose to dissolve their marriage

through courts of law. Spouses can agree to a divorce and obtain one
through whatever judicial body has jurisdiction.

Section 18 of the Marriage and Divorce of Muhammedans Act, provides

the Jurisdiction in Divorce cases and states that nothing in Divorce Act shall
authorize the grant of any relief under the act where the marriage of the parties
has been declared valid under this Act, but nothing in this section shall prevent
 any competent Court from granting relief under the Muhammedans Law. And
the High Court and any other court to which jurisdiction is specially given.

In the Case of Hajji Kasozi v NalwogaNakato (Civil Revision 4 of 2018)

[2021] UGHC 30 (31 March 2021)where the application was seeking for
orders that the decision by the trial Magistrate Her Worship Sarah Basemera
Anne (Mpigi) be revised and set-aside on grounds that the Magistrate Grade One
had no jurisdiction to handle a matter which had been handled by a Sharia
Court, and that the learned Magistrate exercised her jurisdiction illegally by
applying the divorce Act to a Mohammedan marriage.Court upheld the
decision of the Trial magistrate and dismissed the application on grounds that
the instant application is not the one that meets the criteria outlined under S.83
of the Civil Procedure Act.

Simillary in the Case of Ayiko v Lekuru (Divorce Cause No. 1 of 2015)

[2017] UGHCFD 1 (17 February 2017), Mubiru, J Stated that, According to
section 2 of The Marriage and Divorce of Mohammedans Act, relief cannot be
sought under The Divorce Act where the marriage of the parties has been
declared valid under The Marriage and Divorce of Mohammedans Act, however
the High Court may grant relief under Mohammedan law.

For the Extra Judicial Divorce, Under Islamic law divorce is of

primarily of three categories:

1) •Talaaq, Illa, and Zihar(divorce at the insistence of the husband.

2) Mubarat (mutual consent of both parties)
3) Khula (divorce at the insistence of the wife)
A. TALAAQ

Talaaq is an Arabic term for Divorce which literally also means to "set free",
"to dismiss" or "to reject". Therefore, under Islamic law its used to devote
the legal method whereby a marriage contract is brought to an end. It’s the
dissolution of marriage between a husband and wife immediately or
eventually
It is the formal ending or termination of a marital union, canceling the legal
duties and responsibilities of marriage immediately or eventually.

THE PROCESS OF CONDUCTING TALAAQ

In sharia, the process of Talaaq, or divorce, can indeed be manifested orally
or in writing, however, scholars differ on whether the presence of witnesses
is compulsory. Allah says1 "And when they have [nearly] fulfilled their term,
either retain them according to acceptable terms or part with them
according to acceptable terms. And bring two witnesses to just witness
from among you and establish the testimony for [the acceptance of] Allah.
That is instructed to whoever should believe in Allah and the Last day.
And whoever fears Allah - He will make for him a way out."
This verse indicates the importance of witnesses in the divorce process
according to some scholars. The presence of witnesses ensures that the
divorce is conducted in a just and transparent manner, aligning with Islamic
principles. However, it's crucial to note that interpretations and practices
may vary among different Islamic schools of thought.

CONDITION FOR A VALID TALAQ:

1
Ibid (65:2-3)
1. Capacity: Every Muslim husband of sound mind, who has attained
the age of puberty, is competent to pronounce talaaq. It is not necessary
for him to give any reason for his pronouncement. A husband who is
minor or of unsound mind cannot pronounce it. talaaq by a minor or of a
person of unsound mind is void and ineffective. However, if a husband is
lunatic then talaaq pronounced by him during “lucid interval” is valid.
The guardian cannot pronounce talaaq on behalf of a minor husband.
When insane husband has no guardian, the Qadi or a Judge has the right
to dissolve the marriage in the interest ofsuch a husband.

2. Free Consent: Except under Hanafi law, the consent of the husband
in pronouncing Talaaq must be a free consent. Under hanafi law, a
talaaq, pronounced under compulsion, coercion, undue influence, fraud
and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary Intoxication: Talaaq pronounced under forced or involuntary
intoxication is void even under the hanafi law. Shia Law: under the Shia
law (and also under other schools of Sunnis) a Talaaq pronounced under
compulsion, Coercion, undue influence, fraud, or voluntary intoxication is
void and ineffective.

3. Formalities: According to Sunni law, a Talaaq, may be oral or in

writing. It may be simply uttered by the husband or he may write a
talaaq. No specific formula or use of any particular word is required
toconstitute a valid talaaq. Any expression which clearly indicates the
husband’s desire to break the marriage is sufficient. It need not be made
in the presence of the witnesses. According to Shias, Talaaq, must be
pronounced orally, except where the husband is unable to speak. Ifthe
husband can speak but gives it in writing, the talaaq, is void under Shia
law. Here Talaaq must hepronounced in the presence of two witnesses.
4. Express words: The words of Talaaq must clearly indicate the
husband’s intention to dissolve the marriage. If the pronouncement is not
express and is ambiguous then it is absolutely necessary to prove that the
husband clearly intends to dissolve the marriage. Express Talaaq (by
Husband): When clear and unequivocal words, such as “I have divorced
thee” are uttered, the divorce is express.

ILA: Besides talaaq, a Muslim husband can repudiate his marriage by two
other modes, that are, ila and zihar. They are called constructive divorce. In
ila, the husband takes an oath not to have sexual intercourse with his wile.
Followed by this oath, there is no consummation for a period of four
months. After the expiration of the fourth month, the marriage dissolves
irrevocable. But if the husband resumes cohabitation within four months, ila
is cancelled and the marriage does not dissolve. Under ithnaAshara (Shi‘a)
School, Ila does not operate as divorce without order’ of the court of law.
After the expiry of the fourth month, the wife is simply entitled for judicial
divorce. If there is no cohabitation, even after expirv of four months, the
wife may file a suit for restitution of conjugal rights against the husband.

ZIHAR: In this mode the husband compares his wife with a woman within
his prohibited relationship e.g., mother or sister etc. “The husband would
say that from today the wife is like his mother or sister. After such a
comparison the husband does not cohabit with his wife for a period of four
months. Upon the expiry of the said period Zihar is complete. After the
expiry of fourth month the wife has following rights: (i)She may go to the
court to get a decree of judicial divorce (ii)She may ask the court to grant
the decree of restitution of conjugal rights. Where the husband wants to
revoke Zihar by resuming cohabitation within the said period, the wife
cannot seek judicial divorce. It can be revoked if: (i)The husband.
B. KHULU (DIVORCE AT THE INSTANCE OF A WIFE)

Khulu, derived from the Arabic word KhuluThaub, that signifies removing
the dress from the body. In the Islamic context, it refers to the right
granted to Muslim women, allowing them to initiate a divorce. It involves
the wife giving financial compensation to the husband in exchange for her
freedom from the marriage. The Quran Quran:(2:187) metaphorically
describes women as garments for men, and vice versa.

According to Quran2 once Mahr is given, it cannot be reclaimed unless

both parties fear being unable to maintain the limits set by Allah. In such
cases, if the wife agrees to return the Mahr, she can seek divorce.

An illustrative Hadith involving Thabit bin Qais and his wife exemplifies
this principle. Here, the wife, while acknowledging her husband's good
character, feared her inability to fulfill her marital duties as per Allah's
guidelines. In response, the Prophet allowed her to divorce Thabit by
returning the Mahr, ensuring a fair resolution.

Islamic law not only grants husbands the right to divorce under extreme
circumstances but also provides wives with the option to obtain divorce if
valid grounds exist, and they are willing to provide compensation. This
provision enables couples that cannot uphold Allah's decrees to amicably
dissolve their marriage, ensuring fairness and justice.

In a nutshell, Khulu embodies the Islamic principle of balance and fairness,

empowering both partners with the right to seek divorce when necessary,
while respecting the sanctity Sof the Mahr, as defined by the Quran.

2
Ibid:( (2:229)
WHEN CAN KHULU BE DEMANDED

Like divorce, Khulu is disliked in Islam. However, when there is fear that
the limits stipulated by Allah will not be observed if release is not sought,
is allowed.

The following are some of the causes for which a wife can demand for
KHULU:

1. Habitual Ill-Treatment: If the husband consistently mistreats or

abuses his wife, causing her physical or emotional harm, she can seek
Khulu as a way to end the marriage and escape the abuse.

2. Husband's Insanity: If the husband becomes mentally incapacitated

to the extent that he cannot fulfill his marital responsibilities or
comprehend the marriage relationship due to insanity, the wife can seek
Khulu.

3. Incurable Incompetency: If the husband suffers from a condition or

illness that renders him permanently incapable of fulfilling his duties as a
spouse, and this condition is medically diagnosed as incurable, the wife
can request Khulu.

4. Husband Quits Conjugal Domicile: If the husband abandons the

marital home and leaves the wife without proper financial support, making
no provisions for her maintenance, the wife can seek Khulu to dissolve the
marriage.

5. Other Similar Causes: This is a broader category and refers to any

valid reason for seeking divorce that may not be explicitly mentioned but
is recognized as a legitimate cause by a qualified religious authority (Qadi)
based on the particular circumstances of the case. It allows flexibility to
address unique situations that might not fit into specific predefined
categories.
AMOUNT OF COMPENSATION

The amount of compensation, known as Mahr, paid during Khulu is

typically the same amount that was agreed upon or stipulated in the
marriage contract when the couple got married. The husband may choose
to forego some or all of the amount during the Khulu process, but the
specific terms and agreements regarding Mahr should be negotiated
between the parties involved or decided by a religious authority according
to the greatest number of Islamic jurists.

IDDAH FOR KHULU

As earlier on discussed, "Iddah" refers to the waiting period that a woman

must observe after the termination of her marriage, whether through
divorce or the death of her husband. During this period, the woman cannot
remarry and must remain in a state of abstinence.

For Khulu, the Iddah period is generally observed for three menstrual
cycles or three months, whichever is longer. This waiting period serves
several purposes, including ensuring that the woman is not pregnant,
allowing time for any possible reconciliation, and establishing the paternity
of a child in case of pregnancy.

CAN KHULU BE GIVEN AT ANY TIME?

There is no difference in opinion among Muslim scholars that the best time
for KHULU is when the woman is in a state in which she has not been
touched. However, they differ in opinion on KHULU which is granted during
the menstruation of the woman as some scholars are of the view that
KHULU should not be granted when the woman in her menstruation period
as is the case with Divorce.

However, the majority of scholars are of the view that there is no harm to
grant Khulu during the woman's Menstruation period since the Messenger
of Allah did not ask the wife of Thabit about it when she was granted
 Khulu. They also centered that when the woman pays the compensation, it
is her right to be granted KHULU even during her menstruation period.

CONDITIONS TO BE FULFILLED BEFORE KHULU

- She should be of age
- Must be in a health state of mind
- Must be in a state of purity, i.e she should not have had any sexual
relations with her husband and should not be menstruating.

DIVORCE THROUGH MUTUAL UNDERSTANDING. (MUBARAT)

The Quran recognizes the third type of divorce in Islam, a divorce by mutual
agreement. When both spouses feel that they cannot perform the duties they
promised each other upon marriage and that their obedience to Allah would be
harmed through the continuation of the marriage, then a mutual agreement to
reach a divorce is possible.

A woman pays mahr or another property to the man so that he

divorces her.

Mubarat divorce is among the Bai’n divorces in which a man cannot

return to the woman ie during the Idaah period, the man cannot make
her his wife again without reciting the marriage formula. However, in
the Idaah period, the woman may withdraw her giving and if it
happens, the man can return to her likeRij’I divorce.

RULES OF MUBARAT DIVORCE

1) After the woman or her agent gives up the dowry, the man or his
agent recites the Mubarat divorce. The formula, the verb “bara’t-u” is
used to show that the divorce is Mubarat.
2) Among Bain divorces, a man cannot return to the woman during Iddah
without reciting the marriage formu

GENERAL GROUNDS FOR DIVORCE UNDER ISLAMIC LAW

Whereas the Marriage and Divorce of Muhammedans Act does not

specify the grounds for divorce, In Islamic law, there are several valid
grounds for divorce, as outlined in different schools of thought and
interpretations of Islamic jurisprudence. Some common grounds
include:

1. INABILITY TO PROVIDE MAINTENANCE (Nushuz)

If a husband is unable to provide maintenance for his wife, willful or
otherwise is a ground for which court may dissolve the marriage,
according to majority of Muslim jurists.

Allah says: (4:34)

"Men are protectors and maintainers of women because Allah has
made men to excel women and because they spend from their means)
Inability to provide maintenance is part of injuring them, which grants
the right to petition for divorce through a judicial process.

Allah says: (2: 231)

"Do not retain them (women) to injure them".
The prophet (PBUH) In his tradition also said:
"There should be neither harming nor reciprocating harm"

2. SEXUAL INABILITY AND UNBEARABLE DISEASE:

While the Quran does not explicitly mention sexual inability or
unbearable disease as grounds for divorce, the principles of kindness
and fairness in marriage are emphasized throughout the Quran. If a
spouse faces unbearable conditions due to the other's sexual inability
or disease, dissolution can be sought based on these principles.

3. CRUELTY (ZULM).
If a spouse is subjected to cruelty, the wife is at liberty to apply for
divorce as a means to protect the individual from harm.
Allah says: (2: 231)
"Do not retain them (women) to injure them".
The prophet (PBUH) In his tradition also said: "There should be neither
harming nor reciprocating harm"

4. DESERTION (HAJR)
When a spouse abandons the marriage without valid reason and does
not fulfill their marital responsibilities, the deserted spouse can seek
divorce. While there isn't a specific Quranic verse addressing
desertion, the general principles of justice and fairness in marriage
take precedent.

5. LONG IMPRISONMENT.
Long imprisonment as a ground for divorce is a matter of
interpretation among different schools of thought. The Maliki school
recognizes it as grounds for divorce if the imprisonment period is one
year or more, However, it is important to note that the majority of
jurists do not agree on this interpretation.

6. ILLA.
Illa literary means swearing and is a form of conditional divorce that
was practiced in the pre-Islamic days where a husband abstained from
his wife but did not divorce her, leaving the marriage in a state of
uncertainty.

It signifies the taking of an oath that one shall not have sexual
intercourse with his wife for a period of time. In the Pre- Islamic period,
the Arabs used to take such oaths frequently, and as the period of
suspension was not limited, the wife had sometimes to pass her whole
life in bondage, having neither the position of a wife nor that of
divorced women free to marry elsewhere.
After the advent of Islam, the situation was corrected through the
divine revolutions.

Allah says: (2:226-227).

"Those who take an oath not to have sexual relations with their wives
must wait for four (4) and then if return, Allah is oft giving, most
merciful. And if they decide upon divorce, they Allah is All-Hearer, All
Knower"
This verse lays down the maximum period of four months for a
separation in which they legally remain husband and wife but
practically live separate lives without any conjugal relations between
them.

During this period, they must either make reconciliation between

themselves or divorce so that they may be free to marry a suitable
person of their liking.
Basing on the same verse, the majority of Muslim jurists maintain that
the husband is not forced to resume conjugal relations with his wife
before the end of the four (4) months.
If he resumes the conjugal relations before or at the end of the four (4)
months, then that marks the end of ILAA, but if he refuses the wife has
the right at the end of the four (4) months to petition for divorce.
On receiving the petition, Court orders the husband to resume the
conjugal relations and if he refuses, court dissolves the marriage.

Majority of Muslim Jurists conclude that the period of four (4) months
applies only to those cases of separation which are made on oath, but
if the couple remain separate for any length of time without an oath,
this law would not apply to them however, the Malik School of Thought
is to the effect that the law applies to all cases of separation. This
opinion is also supported by some jurists of the Hambal School of
Thought.

7. ZHIHAAR.
The word ZHIHAAR is derived from an Arabic word "ZHAHAR" meaning
the back.
It refers to an ancient Arabian practice where a man would declare his
wife as "forbidden to him as his mother. This was custom was evil in a
manner through which the husband selfishly deprived his wife of her
conjugal rights and yet kept her tied to himself as a slave without her
being free to remarry.

Allah says: (58:2)

"Those who pronounce ẓihar among you [to separate] from their wives
- they are not [consequently] their mothers. Their mothers are none
but those who gave birth to them. And indeed, they are saying an
objectionable statement and a falsehood. But indeed, Allāh is
Pardoning and Forgiving."

Subject to the above verse, Aus bin Samit a companion to the prophet
(PBUH) treated his wife Khaulah in a similar manner. Khaulah came to
the Holy Prophet and complained of her husband's action. Allah
revealed the Sharia ruling on the same.The practice of ZHIHAAR was
condemned by Sharia since then.

However, if a man makes this pronouncement, his wife becomes

forbidden to him until he atones for his wrong deed. He must free a
slave if he has the means or observe fasting for two consecutive
months before touching his wife and if unable to fast, he must feed
sixty needy persons.

To this effect, the wife has a right to sue for her conjugal rights and
court has the discretion to compel the husband to expiate (perform
the penalty) or divorce the wife.

8. LIA'AN.
Lia'an in Islam refers to a specific legal procedure that addresses
cases of alleged adultery or dishonesty within a marriage.
The term "Lia'an" translates to mutual cursing or mutual imprecation.
This procedure is invoked when a husband accuses his wife of
adultery, and the wife denies the accusation, leading to a situation of
mutual distrust and suspicion.
The process of Lia'an involves a solemn oath taken by both the
husband and the wife in the presence of religious authorities and
witnesses. The husband swears four times by Allah that he is truthful
in his accusation, and the fifth time he invokes Allah's curse upon
himself if he is lying. The wife, in response, swears four times by Allah
that her husband is lying, and the fifth time she invokes Allah's curse
upon herself if he is telling the truth.
Allah says: (24:4)
"And those who accuse chaste women and then do not produce four
witnesses - lash them with eighty lashes and do not accept from them
testimony ever after. And those are the defiantly disobedient"
If both parties take these oaths, the marriage is considered dissolved,
and the couple is separated. This procedure is designed to bring a
resolution to a situation where trust has been completely eroded
between the spouses due to serious accusations. It emphasizes the
seriousness of false accusations and provides a legal means to resolve
disputes of this nature. The purpose of Lia'an is to discourage false
accusations, promote honesty, and maintain the sanctity of marriage
within Islamic legal frameworks.
The Dissolution of Muslim Marriages Act 1939 of India has
provided the following;

The husband has neglected or has failed to provide for her

maintenance for a period of two years.

Husband has been sentenced to imprisonment for a period of seven

years upwards.

husband has failed to perform without reasonable cause his marital

obligations for a period of three years and continues to do so.

That the husband has been impotent at the time of the marriage.
The husband has been insane for a period of two years or is suffering
from leprosy, virulent veneral diseases.

That the husband treats her with cruelty ie; assault, obstructs her in
the observance of her religion, doesn’t treat her equitably with the
instructions of the Quran.

On any other ground which is recognized as valid for the dissolution of

marriages under Islamic law.

No decree shall be passed on ground (3) until the sentence has

become final.
A decree passed on ground (1) shall not take effect for a period of six
months from the date of such a decree and if the husband appears in
person or through an authorized agent within that period of six
months and satisfies court that he is prepared to perform his conjugal
duties, court shall set aside the said decree.
Before passing a decree on ground (5) court shall on application of the
husband make an order requiring the husband to satisfy the court,
with in a period of one year from the date that he ceased to be
impotent, if he does, no decree shall be passed.

DIVORCE IN ISLAM IS NOT PRONOUNCED UNDER THE

FOLLOWING CIRCUMSTANCES

Insanity. Parties not in a healthy state of mind

Impurity. When the wife is not in the state of purity i.e. she had
sexual relationships with her husband or is menstruating.

Immediately after birth (custody and child support)

When the wife is still in idaah

Consequences of Divorce in Islam

In Quran it is written during the resolution of a marriage for men is a
share of what they have earned, and for women is a share of what
they of what they earned. (Surat An Nisa:32) subject to this verse,
the rights of men and women in property is dependent on their
respective efforts.
The divorced wife is also entitled to a token of provision Quran 2:241.
It's known as Mataa (alimony)
It's a parting gift meant to comfort and provide solace for the trauma
suffered by the divorced wife and also to maintain the relationship
between the two families of the divorced couple. it can be inform of a
house,clothing, cash etc.
It's obligatory in a case where a woman is divorced before
consumption and before determining her dowry.
The amount is determined by court depending on the mans financial
ability and the woman's social status.
If parties go choose judicial divorce then the consequences are those
provided for by the Divorce Act. In regards toaintainance, custody of
children, award of damages.

In conclusion,Islam.discourages Divorce and encourages

reconciliation as a solution to any challenge in a marriage. Divorce is
only allowed if the grounds are so grave and mighty as the last resort.
Firm union of the husband and wife is a necessary condition for a
happy family life. Islam therefore, insists upon the subsistence of a
marriage and prescribes that breach of marriage contract should be
avoided. Initially no marriage is contracted to be dissolved but in
unfortunate circumstances the matrimonial contract is broken. One of
the ways of such dissolution is by way of divorce. Under Islamic law
the divorce may take place by the act of the parties themselves or by
a decree of the court of law. However, in whatever manner the divorce
is affected it has not been regarded as a rule of life. In Islam, divorce is
considered as an exception to the status of marriage. In the laws of
Islam (sharia) there are three kinds of divorce, each with separate
rules.

Either party can initiate a divorce i.e by a man is Talaaq, by a woman

is khulu and by bothe where they agree to divorce is mabarat.

In Talaaq it's the man who divorces the woman and inKhulu, it's the
woman who divorces the man . For Mubarat both parties agree for
reasons known to them to divorce one another.

In Mubarat and Khul there is payment of some compensation upon

divorce, however in mabarat the property the woman pays back to
the man should not be more than her mahr but in Khul, it may be
more. It should also be noted that IDDAH period is key for divorce to
be successful
DIVORCE UNDER CUSTOMARY MARRIAGE
Customary marriages are those that follow the traditions and customs
of the particular ethnic or cultural group to which either of the couples
belong.

Section 1 of the Customary Marriages Registration Act Cap

248 defines customary marriage as “a marriage celebrated according
to the rites of an African community and one of the parties to which is
a member of that community, or, any marriage celebrated under Part
III of this Act. “
While divorce under customary marriage was (is) rare, nevertheless,
some marriages ending up breaking. It is suffice to say, customary
marriages are terminated according to the customs and norms of a
tribe or clan where of one of the parties or both belong.

The law3 on Customary Marriages does not pronounce itself on the

process of dissolving customary marriage.
In the case of Aiiya v. Aiiya4, court said that customary law does not
provide a procedure for dissolution of marriage. However, this can be
inferred from the practice and case law as explained below.

By practice, the process begins with negotiation and mediation

between the parties involved. Family members, clan elders, or
community leaders may be involved in helping the couple resolve their

3
Customary Marriage (Registration) Act, Cap 248
4
Divorce Cause No. 8 of 1973
issues. Some cultures have clan heads where some of the marriage
issues are referred. Other processes may include;

Notification of Intent: To initiate the divorce process, one or both

parties must notify their respective families and community leaders of
their intent to divorce. This is a formal declaration of the decision to
end the marriage.

Family and Community Involvement: Customary divorce

proceedings often involve family members, clan elders, or community
leaders who play a significant role in mediating and overseeing the
process. They aim to reach a resolution that is in the best interest of
both parties and the community.
Resolution and Settlement: The parties, with the guidance of the
involved elders and leaders, will work on settling issues related to
property, custody of children, and any other matters that need to be
addressed. Customary customs and traditions may influence the
division of property and other assets.

Return of the Bride Price: In some cultures, for marriage to be

dissolved especially at the insistence of the women, she had to first
return the dowry paid to her at marriage. However, this practice has
been outlawed as repugnant to the Constitution of Uganda by the
successful In case of Mifumi (U) Ltd and 12 others Vs The
Attorney General5

Under case law, the dissolution process has been discussed in the
following instances:

5
[2015] UGSC 13
 In NamukasaJoweria V. Kakondere Livingstone6, the petitioner
sought inter alia the dissolution of her customary marriage to the
respondent, custody of, and maintenance for the four issue of that
marriage, a portion of the matrimonial wealth, a claim to property she
obtained as an individual during the marriage including among other
claims.

In determining whether, the petitioner had a redress under customary

law, Court held that “it cannot be the purpose of our law that persons
in a c’ustomary marriage may not seek for good reason, its
dissolution. The principal law, the Customary Marriage (Registration)
Act, makes provision for validity and registration but not dissolution of
customary marriages. On the other hand, the Divorce Act which in its
preamble is an Act relating to divorce did not specifically provide for
the types of marriages it would apply to. Since customary marriages
are provided for by statute, I see nothing in the law, excluding their
dissolution under the Divorce Act and therefore hold that this marriage
can be dissolved under the divorce Act. Even the mode of the
pleadings by both parties connote a divorce being sought under the
Act.

Thus, it can be seen, that in absence of clarity from Customary

Marriage Act, process as in enshrined in the Divorce Act suffice to
customary marriage dissolution as well.

Grounds for Divorce:

- Witchcraft especially among Bantu communities is a serious offense,

which can resolve a marriage
- Infertility on the part of the wife
- Incompatibility, including; constant quarrels, nagging

6
Divorce Cause No. 30 Of 2010
- Laziness
- If one partner suffers a prolonged incurable disease

Other basic grounds as listed in the Divorce Act 7

- Adultery
- Cruelty
- Desertion

Consequences for Divorce under customary law

There was a severencr of marriage bond but not the family
relationship for insurance the death of a relative of the divorced
spouse would normally bring the couple together. Children had to
grow up together and they normally stayed with the father because of
patrilineal nature of our societies. But the divorced wife and the
relatives would go and visit the children as long as property and other
things remained in the mans hands.
Return of bride price (outlawed in mfumi case)

Custody of Children: In the case of Samwiri Massa Vs. Rose

Achen8 it was said that “although no parent is preferred in law, courts
have tendered to grant custody of children of tender years to their
mothers except where exceptional circumstances dictate otherwise.
Whichever parent court may choose to have custody of children, there
will be loss of custody by one of the parties.

Maintenance Money: In the case of Samwiri Massa Vs. Rose Achen

(supra), Lady Justice Eva K. Luswata said that “with regard to
maintenance, under Section 76 of the Children Act, any person
who has custody of a child including a parent, is permitted to make an
application for a maintenance order against the father or mother as
the case maybe”
7
Divorce Act, Cap 249
8
[1978] HCB 297
Share of Property: In a case of KaggaVsKagga9, Justice
Mwangusya observed that, “Our courts have established a principle
which recognizes each spouse’s contribution to acquisition of property
and this contribution may be direct, where the contribution is
monetary or indirect, where a spouse offers domestic services…..when
distributing the property of a divorced couple, it is immaterial that one
of the spouses was not financially endowed as the other as this case
clearly showed that while the first respondent was the financial muscle
behind all the wealth they acquired, the contribution of the petitioner
is no less important than that made by the respondent.” Courts may
order a 50% share between the petitioner and respondent.

9
High Court Divorce Cause No.11/05