Alimony in Uganda. The right to spousal maintainance in Uganda might be an unconstitutional violation of the right to property in Uganda

by Admin · Published November 23, 2023 · Updated April 21, 2024

In Ayiko Mawa Solomon v Lekuru Annet Ayiko [2017] UGHCFD 1; court defined alimony as spousal support or compensation earned by the economically disadvantaged spouse (normally the wife) through marital investments and as a means of eliminating distorting financial incentives in marriage, as well as a way to relieving financial need. We define alimony or supposal maintainance as a sum of money that a spouse is ordered to pay by court or through mutual agreement to his or her spouse during divorce or after divorce to maintain or financially support the said spouse. This right to spousal mantainance in Uganda might be an unconstitutional violation of the right to property. Is the state interest in ensuring that the financially weaker spouse does not become a charge on public resources strong enough to compel the financially stronger spouse to indefinitely support a man or woman he or she does not want or that has chosen to throw away years or decades of marriage using his or her hard earned resources. The right to spousal maintenance exists under the Divorce Act and at common law. The justification for this obligation is that the spouse should not be allowed to become a charge on public resources when the marriage dissolves or during judicial seperation. The right to spousal maintenance is embedded in Section 23 and 24 of the Divorce Act. Section 23 provides for temporary alimony pending determination of the court proceedings. This temporary order of maintenance can not exceed twenty percent of the income of the spouse against whom the order is made and can not be paid for a period exceeding three years or until the decree for the dissolution of the marriage is absolute

The common sense of limiting the quantum of temporary alimony is obvious. Even a woke, biased and activist judicial officer is limited to twenty percent of the income of the spouse against whom the order is made. In practical terms this means that if a spouse earns ten million shillings per month, court can award his or her spouse only two million per month as alimony. If this limitation didn’t exist you would find certain misguided judicial officers awarding even more than fifty percent of the spouse’s income in the name of equality.

However under section 24 of the Divorce Act which provides for permanent alimony parliament did not impose any limitations on the discretion of court. Under section 24 (1) on a decree absolute declaring a marriage to be dissolved, or on a decree of judicial separation obtained by a wife, the court may order the husband to secure to the wife such sum of money as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable.

Under this section, the court may direct the alimony to be paid either in a lump sum or in yearly, monthly or weekly payments for any period not exceeding the life of the wife, and for that purpose may cause a proper instrument to be executed by all necessary parties. The court may direct the alimony to be paid either to the wife herself or to a trustee to be approved on her behalf by the court, and may impose such terms and restrictions, and may direct the execution of such trust deeds as it may think fit, and may from time to time appoint a new trustee.

Under section 24 the court may order the husband to secure to the wife such sum of money as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties, it thinks reasonable during her lifetime. Apart from the section being drafted in discriminatory terms against men, courts have dropped the requirement to consider the conduct of the parties. The alimony is payable at whatever rate the specific judicial officer deems appropriate whether the spouse applying for alimony is responsible for the dissolution of the marriage or not.

On the positive note court is required to consider the means of the applicant and the spouse against whom the order is sought. Atleast a spouse who is able to maintain herself might be denied an order for maintenance on that basis. However, how does marrying a person cloth you with the responsibility to maintain that person for life. What about if that person remarries and starts a new family? Why should the previous spouse continue to maintain him or her? Fortunately courts have decided that upon the remarriage of the spouse, the right to maintenance as against the former husband or wife lapses.

Why should a person you have divorced and abandoned have a infinite obligation to maintain you? Ordinarily courts require the financially stronger spouse to maintain the level and quality of life that the benefiting spouse is accustomed to. So after you have broken up my home, I have the obligation to give you the standard of living that I provided to you when you were my spouse and partner. In which universe is this fair? Is the state interest in ensuring that the financially weaker spouse does not become a charge on public resources strong enough to justify forcing me to provide for and support a person who is no longer connected to me indifinitely.

Unlike the right to a share in matrimonial property which itself is applied in unfair manner by not considering the contribution of the financially stronger spouse to the financially weak spouse, the right to maintenance applies to income earned after the dissolution of the marriage. A spouse can decide to sit at home doing absolutely nothing yet work opportunities are available because she or he has secured alimony under her or his divorce. If the state has an interest in protecting marriage it should not be incentivicing divorce by granting alimony for an indefinite period.

It is reasonable to argue that at the dissolution of the marriage there should be a transitional period during which the financially stronger spouse should be required to support the financially weak spouse to give him or her time to adjust his or her new circumstances by acquiring his or her own means of survival. Every other individual has the duty to struggle for their own survival, why should marriage impose a burden on a person to support a person who has divorced them for an indefinite period. A short transitional period is justified because it gives the applicant time to adjust and earn their own income. Every other contract lapses and releases the other party from any obligation but the marriage contract purports to extend beyond the dissolution of the marriage and impose substantial hardship on the financially stronger spouse.

The right to property under section 26 bars the state from taking the property of another without adequate compensation. The are two way the state can compel persons to part with their property without compensation. One is by imposing taxes or fees or charges for the services it provides or mandatory savings such as NSSF, PAYE and other taxes. The second one is called regulatory takings that do not amount to compulsory acquisitions or takings. Parliament by legislation affects the property interests of individuals by directing action that requires expenses, or leads to reduction in value or that restricts certain rights vested in the property owner without amounting to a taking of the property. These regulatory takings apply where the property owner has a bundle of rights and parliament restricts some of them without depriving the property of all economic or other value. Whether a law amounts to a taking of property without compensation or a regulatory taking depends on the nature of the property and the restrictions imposed by the state.

The state may restrict use of property but requiring an individual to pay money out of their pocket requires a higher threshold. The state has no power to compel a person by penalty to engage in economic activity except by taxation or other incentives. If we can read the compulsion to pay alimony as a tax then it’s within the power to tax. The state power to tax is subject to the political process and could be limitless provided that it meets certain due process guarantees. However it is illogical to classify the alimony as a tax because it doesn’t benefit the government or raise revenue for it. Generally, the government has no power to force individuals not engaged in commercial activities to buy services they did not want.

Parliament can prescribe remedies available to parties that have decided to engage in certain action. For example parliament can lawfully prescribe the terms of seperation in an employment contract or any other relationship for that matter whether based on contract or social norms. We accept that parliament can set the terms of seperation at the dissolution of the marriage contract the same way it can require employers to give notice of three months before terminating an employment contract. The question of interest here is whether parliament can compel an employer to keep an employee that the employer does not want for an indefinite period of time?. By extension the relevant question becomes whether parliament can lawfully compel a spouse to financially support a man or woman that he or she does not want for an indefinite period of time?

The starting point is that parliament may limit the enjoyment of constitutional rights to serve a legitimate government interest provided that the limitation does not unduly burden the constitutional right in issue, is a reasonable way of achieving the state interest and is the least restrictive means of achieving the state interest. The state interest in imposing alimony is to ensure that the financially weak spouse doesn’t become a charge on public resources. In Uganda where there are no welfare benefits such as food stamps, medical aid, unemployment benefits or similar programs I wonder what it means to become a charge on public resources. The free health care the government provides can not be taken as a welfare program. There are no drugs and medical personnel in the health facilities for someone to classify it as welfare. According to the Supreme Court in Sharon Dimaniche and another v Makerere University, Uganda applies the proportionality test in determining whether limitations to constitutional rights are consistent with the Constitution.

The principle of proportionality applies a three part test as proposed in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 by Lord Clyde. In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

Let us assume that parliament has a legitimate interest in ensuring that when a marriage is dissolved the financially weaker spouse does not become a charge on public resources. It is reasonable that upon dissolution of the marriage the financially weaker spouse should be given an opportunity to adjust to his or her circumstances to transition from being supported to supporting himself or herself. It is one thing to mandate a temporary and time limited obligation to a former spouse and another thing to mandate a life long obligation to financially support a former spouse who has the ability to work for themselves just because you had the bad luck to get married to that person. The divorce act does not place a cap on the permanent alimony payable and for how long. It is arguable that mandating payment of alimony can achieve the state interest in ensuring that a spouse does not become a charge on public resources upon dissolution of the marriage. So the means adopted by parliament to address the state interest are logically connected. However the failure to impose a cap and time limitation on the permanent alimony are overbroad. A person has the responsibility to work and put in place measures to ensure their success and and survival. Mandating that a spouse should have the responsibility to support an adult person for the entirety of his or her life exceeds the responsibility of the state and the spouse. The burden imposed on the right to property by alimony is disproportional to the state interest. Every adult individual has the burden to secure their own means of survival. Even a biological offspring of a person can not claim a life long right to be supported or maintained by his or parents. How then can it be justifiable that marriage creates a life long obligation to support and maintain an adult who has voluntarily decided to leave the marriage or has made it intolerable for the financially stronger spouse to remain in the marriage.

The obligation to pay alimony is overboard because it has no time limit and it is not limited to a specific percentage of the other spouse’s income. It creates a situation where the receiver of alimony is discouraged from working to support himself or herself and it burdens the payee with the obligation to work for an adult who has the duty to struggle for his or her own sustanance. It is also overbroad because it incentivices divorce by giving the financially weaker spouse motive to breakdown the marriage so that he or she can be supported and maintained indefinitely by the financially stronger spouse. You get the benefits of being a spouse without any of the obligations of being a spouse.

There are less burdensome means of achieving the desired state interest. Parliament can use a time limited obligation to pay alimony that is tied to a percentage of the income of the financially stronger spouse. For example alimony pending determination of the case is limited to twenty percent of the income of the other spouse and it continues for three years or until the decree dissolving the marriage is made absolute. Parliament can achieve its objective without shouldering the financially stronger spouse with an infinite obligation to pay alimony. A mandate to pay alimony for five years at a fixed rate of the other spouse’s income is not objectionable. Even poor me can decide to obtain credit, payoff my five years of alimony and start over on a clean slate.

Under the social contract theory of the law the right to property is as fundemental as the right to life itself. Man being dissatisfied with the quality of his life in the state of nature decided to enter a social contract with fellow men composed of basic rules of conduct to improve his quality of life and and protect his property. For this reason all limitations to the right to life and property require strict scrutiny in order to be upheld. Limitations to the right to life and property must serve a very important state interest as a starting point of the inquiry to determine their Constitutionality. It is doubtful that the state interest to ensure that a spouse does not become a charge on state resources is strong enough to be considered a very important state interest where there is no welfare system that will be burdened if alimony was not payable.