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Mutebe and Martha's Marital Issues: Possible Remedies and Legal Proceedings, Assignments of Family Law

The marital issues between mutebe philemon and martha nalukwago, including their attempts to stop each other from relating with relatives and children from previous relationships, martha's undisclosed brain disease, and the resulting frustration and desire for separation. The document also discusses the possible remedies available to the couple under ugandan law, including divorce on grounds of cruelty or adultery, nullity of marriage due to lunacy, and desertion. A petition for nullity of marriage and related court documents.

Typology: Assignments

2020/2021

Uploaded on 04/10/2021

nuwgaba-joel
nuwgaba-joel 🇺🇬

4.3

(3)

5 documents

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Task A Brief Facts Mutebe Philemon got married to Martha Nalukwago at Uganda Martyrs Catholic Shrine Basilica, Namugongo on 22nd November 2015. They live at Kira Bulindo, Wakiso District and have one child Emmanuel aged 4. Mutebe says that his wife, Martha does not want him and has tried to stop all to relations between him and his relatives and his other 4 children aged between 15 and 5 that he got with a one Shanice. Unknown to Mutebe, Martha had a disease of the brain that would render her unconscious for some time but she did not disclose this to Mutebe. Martha`s illness left him frustrated and wishes he had known before he married her and for that reason coupled with Martha’s frequent fights and quarrels, Mutebe decided get a job abroad in Arusha so as to “stay sane” and away from Martha. He has been in Arusha since January 2019 and is happy about that decision. Martha, however, loves Mutebe and for the sake of their 4year old son still wants to be with her husband Prior the marriage, Mutebe owned a commercial building in Mbale which is rented out to NWSC. He also owns a house at Namugongo. Martha on the other hand acquired a number of properties in Najeera, Buwaate and Ssonde. As a couple, they got the house at Kira Bulindo where Martha is currently living, a hardware shop in Bweyogerere, a fuso truck that they hire out and a supermarket at Seeta. Issues a. What possible remedies are available to Mutebe and Martha? b. What is the best remedy available for the duo given the irretrievable breakdown of marriage? c. Draft the necessary documents for the best remedy identified in the above issue? Law Applicable

  1. The Constitution of the Republic of Uganda 1995
  2. The Marriage Act, Cap 251
  3. The Divorce Act, Cap 249
  4. The Divorce Rules SI 249- Resolution of Issues a. What possible remedies are available to Mutebe and Martha? Remedies to Mutebe Philemon I advise Mutebe to apply for divorce on grounds of cruelty, and also, he can apply for nullity of marriage. In relation to divorce, Section 4(1) of the Divorce Act Cap 249 provides that a husband may apply by petition to the court for the dissolution of his marriage on the ground that since the solemnization of the marriage, his wife has been guilty of adultery. In Norman v Norman Divorce Cause No. 6/1973, court held that; given the natural and ordinary meaning of the words used in section 4(1) of the Divorce Act, the inference is that a husband will only petition for divorce on the ground of adultery. However, this position was modified in the case of Uganda Association of Women Lawyers and 5 others V Attorney General^1 where Constitutional court held that each of the grounds for divorce provided for under sections 1&2 of the Divorce Act is available to both husband and wife in a petition for divorce. This means that, the husband can also rely on cruelty and desertion with adultery to petition for divorce. Cruelty is provided for under Section 4(2)^2 and it occurs when a spouse conducts himself/herself in such a manner which causes injury or reasonable apprehension to another’s life. In the Case of Gakwavu V Gasengayire^3 , court noted that; in a petition based on cruelty, courts cannot examine every petty squabble in a marriage and build a case on cruelty. Court (^1) Constitutional Petition No. 2 of 2003 (^2) Divorce Act Cap 249 (^3) (1977) HCB 322

In most cases of desertion, the guilty actually leaves the other party. In Pulford v Puldfor (1923), court held that, Desertion is not necessarily withdrawing from the place or matrimonial home but from the state of things and the test is whether the spouses are still living together as husband and wife. The standard of proving desertion is if it has been going for a period of 2 years an above. In Patel v Patel (1965) E.A 560 , it was held that the constituents of desertion include; that the husband or wife left the matrimonial home without the consent of the other partners, with the intention of permanently ending cohabitation and without reasonable cause. Likewise, In Nassuna Edith Zavuga V Jasper Serwanga 2 Anor, DC No. 10 of 2003 , Rwamisazi Kagaba J held that desertion can be constructive where one of the parties in the marriage makes it difficult for the other person to live in their matrimonial home and that person leaves desertion is umpired on that person who was making it difficult for the other to stay in their matrimonial home. In a nutshell, we advise that a petition for nullity of the marriage by Mutebe Philemon would be the best remedy since the standard of proof is higher than when a party is seeking a decree of nullity. Likewise, the marriage was void from the start because of the lunacy on the side of Martha Nalukwago. b)

1. PETITION FOR NULLITY

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE COURT OF WAKISO HOLDEN AT WAKISO

FAMILY DIVISION

MATRIMONIAL CAUSE 0F 2021

MUTEBE PHILMONE ………………………… PETITIONER

VS

MARTHA NALUKWAGO ………………………………. RESPONDENT

PETITION FOR NULLITY

(Under Section 11 and 12 of the Divorce Act Cap 251)

  1. The Petitioner is an adult male Ugandan of sound mind and the Petitioner address for purposes of this petition is Firm C6 & Company Advocates P.O Box 1112 Mbarara.
  2. The Respondent is a female adult Ugandan and wife to the petitioner and the petitioner’s Advocates undertake to effect court process on her.
  3. The petitioner and the respondent are domicile in Uganda.
  4. The Petitioner’s claim against the respondent is for a decree of nullity of the marriage.
  5. That the Petitioner’s cause of action arose as hereunder; a) That the petitioner’s wife, the respondent, does not want him to relate with his relatives and his other children he got before their marriage.

P.O. Box 1112 Mbarara

2. SUMMARY OF EVIDENCE THE REPUBLIC OF UGANDA IN THE CHIEF MAGISTRATE COURT OF WAKISO HOLDEN AT WAKISO FAMILY DIVISION MATRIMONIAL CAUSE 0F 2021 MUTEBE PHILMONE ………………………… PETITIONER VS MARTHA NALUKWAGO ………………………………. RESPONDENT SUMMARY OF EVIDENCE The Petitioner shall adduce evidence to show that the marriage between the Petitioner and the Respondent is not valid on ground that unknown to the Petitioner, the respondent was a Lunatic at the time of the celebration of the marriage. That the respondent has spilled hatred for the father within his four year old son, Emmanuel. That the respondent has done everything possible to separate the Petitioner from his marriage and more so has stopped him from seeing his other children he got before their marriage. LIST OF WITNESSES 1. Shanice, former wife to Mutebe 2. Emmanuel, Mutebe’s four year old son 3. Any other with leave of court LIST OF AUTHORITIES

  1. The Constitution of the Republic of Uganda, 1995(As amended)
  2. The Marriage Act, Cap. 251
  3. Divorce Act, 249
  4. Case Law
  5. Any other relevant authority LIST OF DOCUMENTS
  6. The Marriage Certificate
  7. Any other with leave of court DATED this ………………. day of ………………… 20… ……………………. PETITIONER Drawn and filed by Firm C6 & and Company Advocates P.O. Box 1112 Mbarara

REGISTRAR