Requirements For Contracting Marriage In Uganda And Conditions That May Invalidate Marriage
(The question of conflict of laws; does Uganda recognise marriages celebrated else where in the world; a case for the UK)
1. What Are The Formal Requirements For Contracting Marriage In Uganda.
There are several kinds of marriage legally recognised and that may be contracted in Uganda, namely,
- Church marriage which is monogamous (one man one wife) contracted under the Marriage Act Cap 251 and celebrated in a place of worship or other licensed place before a licensed officiating officer of the church.
- Civil marriage which is monogamous (one man one wife) contracted under the Marriage Act and celebrated in the office of the Registrar of Marriages by the Registrar of Marriages.
- Islamic marriage which is polygamous in nature and celebrated in accordance with the rites and observances of the Islamic faith.
- Hindu marriage which is polygamous in nature celebrated in accordance with the rites and observances of the Hindu faith.
- Customary marriage which is polygamous in nature celebrated in accordance with the local customs.
This article is specifically looking at monogamous marriages contracted under the Marriage Act Cap 251 Laws of Uganda; namely, the Church Marriage and the Civil Marriage.
Church Marriage and Civil Marriage in Uganda are regulated by the Marriage Act cap 251 Laws of Uganda. The following are the legal requirements/ preliminaries for contracting church or civil marriage in Uganda.
1.1 Notice Of Marriage Signed By One Of The Parties To The Intending Marriage.
s.6 of the Act requires that before any marriage above can be celebrated, a notice of marriage must be given to the Registrar of Marriages in the district where the marriage is intended to take place. Marriage district are created and constituted under the Act by the Minister by Statutory Order for purposes of having marriages conducted and officiated over in such districts.
They are different from the Administrative districts created under the Local Government Act. The Marriage Districts are allocated Marriage Registrars who are fit and proper persons to officiate over marriages in their offices. This notice is in a prescribed form (Form A in the first schedule to the Act), provided by the registrar; which one of the intending couple signs and submits to the registrar’s office. The registrar is required under s. 8 of the Act to supply this form gratuitously to any person applying for it.
The registrar enters this notice in the Marriage Notice Book and a copy of the notice is displayed in a conspicuous place at the registrar’s office to give notice to the public of the intending marriage as required by s. 9 of the Act. The law requires that these marriage notice books should be available for inspection by any person during office hours at no fee. It is this notice that someone with a good reason why the couple should not be married can proceed under s.13 of the Act to put a caveat stopping the marriage. The notice remains on display for three months or until the marriage registrar issues a notice certificate of the intending marriage.
1.2 Affidavit By The Intending Couple
s.10 of the Act requires that the intending couple must then satisfy the registrar by way of affidavit on the following;
- That at least one of the parties to the intending marriage has been resident in the marriage district where the marriage shall be celebrated for at least 15 days.
- That each of the parties to the marriages is 21 years and above and if one of the parties is under age, the requisite consents have been obtained. The marriageable age under the Act is 21 years and above, any person under the age of 18 is considered a minor with no capacity to contract a marriage under the Act and any sexual relations with such a person amounts to an offence of defilement under the Penal laws of Uganda. Consent of parents or a guardian is required under s.17 of the Act for marriage to a person aged 21 to 18.
- That there is no impediment of kindred or affinity or any other lawful hindrance to the marriage. Kindred or affinity refers to prohibited degrees of kinship or consanguinity and it prohibits marriages between blood relations like mother, father, son, daughter, nephew, niece, grandchild, uncle, aunt, grandfather, grandmother among others.
- That neither of the parties to the intended marriage has previously been married under customary law to any other person other than the person with whom such marriage is proposed to be contracted.
1.3 Certificate Of Notice By Registrar
s.10 further provides that after the notice above has been up for 21 days and the registrar is satisfied by the above affidavit that the couple meets all the listed requirements, the registrar of marriages issues a certificate (in Form C of the first schedule to the Act) but not later than three months from the date of publication of the notice. The certificate is issued at a fee.
The requirement of notice and certificate of notice may be dispensed with where the minister issues the intending couple a license to go ahead and contract their marriage without these two requirements. S. 12 gives such powers to the minister. The minister must be satisfied by affidavit of the intending couple that there is no lawful impediment to the proposed marriage, and that the necessary consents if any (consents are required where one of the parties is under the age of 21) have been obtained.
1.4 Marriage to take place within three months from the date of issue of the certificate.
Section 11 requires that the marriage must then take place within three months from the date of issue of the certificate. Where it does not, the notice expires and the intending couple cannot lawfully marry on an expired notice, the intending couple must then go through the process of acquiring fresh notice. A marriage celebrated without notice or with an expired notice is void/ invalid.
1.5 Place And Time Of Celebration Of Marriage
The intending couple may choose to celebrate their marriage in a licensed place of worship, and such marriage is what is famously known as Church Marriage. Alternatively, the intending couple may choose to celebrate their marriage in the office of the registrar of marriages, that’s what if famously known as Civil Marriage.
1.5.1 Marriage In A Licensed Place Of Worship (Church Marriage)
Section 20 provides that the marriage may be celebrated in any licensed place of worship, by a recognised minister of the church, denomination or body in accordance with the rites or usages of marriage observed in that church, denomination or body. This is what is called Church Marriage.
The marriage must be celebrated with open doors, between the hours of 8 o’clock in the forenoon and 6 o’clock in the afternoon (i.e. between 8:00 AM -6:00 PM).
There must be two witnesses to the marriage present besides the officiating minister.
The place of celebration must be in a building which has been duly licensed by the minister or in such other place as the minister may direct. S. 5 of the Act requires that places of public worship must be licensed to be places for celebration of marriages and the license must be published in the Gazette for public notification.
It is therefore a legal requirement that to lawfully contract a marriage in a place of worship, the place of worship must be licensed and the officiating minister of the church must be a recognised one who may be; (a Priest for the Catholic Faith, Reverand for the Church of England or Pastor for Pentecostal churches.
1.5.2 Marriage In The Registrar’s Office (Civil Marriage)
After the issue of the notice and certificate of notice of marriage, or after obtaining a license from the minister dispensing with the above requirements, the intending couple may decide to contract their marriage before the registrar of marriages in his office as provided for under s 26 of the Act instead of marring in a recognised place of worship. This is what we call Civil Marriage.
The parties contract their marriage before the registrar of marriages in his or her office. The marriage must be celebrated with open doors between the hours of 10 o’clock in the forenoon and 4 o’clock in the afternoon (i.e. from 10:00AM – 4:00 PM).
The couple takes the vows that they are taking each other as husband and wife and legally married to each other although there is no other rite of a civil or religious nature that shall take place and that the marriage cannot be dissolved during their lifetime except by a judgement of divorce and that contracting another marriage amounts to bigamy.
A marriage certificate in duplicate is also signed by the registrar, the couple and the two witnesses. One is given to the couple and the other is filed and registered by the registrar (s.27 of the Act).
1.6 Issuance Of Marriage Certificate And Its Registration.
Section 24 of the Act provides that immediately after the celebration of the marriage, the officiating minister must fill the marriage certificate in duplicate with particulars of the married couple, the officiating minister, the two witnesses, date of marriage and marriage certificate number. Section 25 provides that the certificates must also be signed by all the persons mentioned above. One of the certificates is given to the couple and the other must be transmitted to the registrar of marriages for registration within 7 days.
Effect Of Non Filing Of The Marriage Certificate With The Registry
The law provides for a penalty for delayed transmission or registration of this certificate but such delays in the process does not affect the validity of the marriage. At this point the marriage is sealed and the marriage contract is complete. The High Court of Uganda has held that non registration of a marriage does not affect its validity otherwise many marriages in Uganda would be invalid. In the case of Negulu Milly Eva V Dr Serugga Solomon Civil Appeal No. 103 of 2013, it was held that the requirement of registration of marriages is an administrative requirement for purposes of keeping records; and is not a requirement for validation of marriage.
The duty of filing the marriage returns is imposed on the registrar of marriages and not on the married couple. S. 31 of the Act provides inter alia that the registrar of marriages in each district shall register in the marriage register book kept in his office for that purpose, every certificate of marriage which shall be filed in his or her office.
The registrar is further required to send to the Registrar General a certified copy of all the entries each month for purposes of filing the same by the Registrar General. The law creates an offence in respect to persons who wilfully neglect their duty to fill up or transmit certificates of marriage and in this regard; S. 46 provides that any person who, being under a duty to fill out the certificate of marriage celebrated by him or her, or its counterfoil, or to transmit the certificate to the registrar of marriages, wilfully fails to perform that duty, commits an offence and is liable on conviction to imprisonment for a period not exceeding two years.
In conclusion, once a marriage is contracted in accordance with the Act and meeting all the legal requirements as above, such marriage is good and valid in law for all intents and purposes. Section 35 of the Act expressly states that all marriages celebrated under the Act shall be good and valid in law to all intents and purposes.
Additionally, every certificate issued under the Act is evidence of the marriage. Section 33 of the Act provides that every certificate of marriage which shall have been filed in the office of the registrar of any district, or a copy of it, 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 it, certified, 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 evidence.
2. Conditions That Invalidate Marriages Contracted As Above
Different marriages have different factors that may invalidate them, so there is no set of factors that can invalidate all marriages in Uganda. In this article, we are considering the monogamous marriages contracted under the Marriage Act namely; Church Marriage and Civil Marriage before the registrar.
The Act spells out all the circumstances that can invalidate any marriage contracted under the Act and clearly states that besides the stated circumstances, there is no other factor that shall invalidate such marriages contracted under the Marriage Act. The following are the factors;
- Marriage shall be invalid where contracted by parties with in the degrees of kindred or affinity. These include marriage to a father, mother, grandfather, grandmother, brother, sister, nephew, niece, son, daughter, grandson, granddaughter, uncle, auntie, adopted parents and children among others.
A detailed list of prohibited degrees of kinship in Uganda can be extracted out of the laws of Uganda, in particular, the Customary Marriages Registration Act Cap 248 laws of Uganda. The Act applies to customary marriages but gives guidance on prohibited degrees of kinship in Uganda which are not cited anywhere in the marriage Act Cap 251.
The prohibited degrees of kinship in section 11 and the 2nd schedule to the above Act include marriages between: Mother, Father, Mother’s daughter, Father’s son, Daughter, Son, Father’s mother, Father’s father, Mother’s mother, Mother’s father, Son’s daughter, Son’s son, Daughter’s daughter, Daughter’s son, Sister, Brother, Wife’s mother, Husband’s father, Wife’s daughter, Husband’s son, Father’s sister, Father’s brother, Mother’s sister, Mother’s brother, Brother’s daughter, Brother’s son, Sister’s daughter, Sister’s son, Father’s brother’s daughter, Father’s brother’s son, Mother’s sister’s daughter, Mother’s sister’s son, Son’s wife Daughter’s, husband Father’s wife, Mother’s husband.
- Marriage shall be invalid where one of the parties or both were previously married by customary law to another person other than the person with whom the marriage is had.
- Marriage shall be invalid where both parties knowingly and wilfully acquiesce in its celebration;
- In any place other than the office of the registrar of marriages or licensed place of worship without the minister’s license.
- Under a false name or names.
- Without the registrar’s certificate of notice or minister’s license dispensing with the notice and certificate requirement duly issued.
- By a person not being a recognised minister of some religious denomination or body; or a registrar of marriages.
Questions Of Conflict Of Laws
Ugandan law facilitates marriage in Uganda between Ugandans and British citizens as long as the parties meet the requirements for marriage as discussed above.
Ugandan law also facilitates marriage in Uganda between British subjects resident in Uganda and British subjects resident in England; and as well; recognises marriages celebrated in England and a certificate of notice from England may be used in Uganda to contract a marriage. All this is enabled under section 30 of the Act.
Ugandan law does not recognise marriages in Uganda which would also be invalid in England on grounds of kindred or affinity.
Conflict of law sometimes called private international law concerns the process for determining the applicable law to resolve matters of conflicting legal frameworks.
The laws of the United Kingdom on marriage have variations with the laws of Uganda in some material respects and where marriage is to be celebrated in Uganda, it only need to fulfil the legal requirements under Ugandan laws.
Once the marriage is valid under Ugandan laws, foreign marriages are recognised in the UK. For a foreign marriage to be valid in English Law, the following must be fulfilled
- The marriage ceremony must be recognised as a valid form of marriage by the law of the place of celebration.
- Each of the parties must have capacity, under the law of the place where he or she is domiciled at the time of marriage, to marry the other party in the manner proposed.
- Any previous marriage of either party must first have been validly terminated in the eyes of English Law
Additionally, once a marriage is recognised in the United Kingdom as valid, the same validity will be afforded to such marriage in Uganda.
This principal has been recognised by the Supreme Court of Uganda, which is the Highest Appellant Court of Uganda. In the most recent 2017 decision of Justice Prof. Dr. Lillian Tibatemwa Ekirikubinza, in her Judgement in the case of Elizabeth Nalumansi Wamala V Jolly Kasande & 2 others Supreme Court Civil Appeal No. 10 of 2015, delivered in 2017, the couple got married in the United Kingdom (UK) in 1992 and obtained a certificate of marriage. On the question of validity of their marriage, court held that a marriage certificate recognised in the UK would be recognised in Uganda.
Court further held that the fact that the marriage certificate was not registered in Uganda (as a legal document) or notarised does not affect its validity. Court emphasised that lack of subsequent registration of the marriage can only affect its proof in evidence and cannot affect its validity.
Court further stated that there is no law in Uganda which obliges a person whose marriage has been celebrated outside Uganda to have it registered or notarised as a preliquisite for its recognition as a valid union (refer to page 16 paragraphs 15-30).
In that case, the Lady Justice stated with emphasis that as long as the marriage was recognised as a valid marriage in the UK where it was celebrated, that marriage is recognised as a valid marriage in Uganda.
The Marriage Act exhaustively provides the requirements for lawfully contracting a marriage in Uganda. Non registration of a marriage does not affect its validity; registration is only an administrative requirement for record keeping purposes.
The Act also exhaustively provides the grounds upon which marriage contracted under the Act may be declared invalid and besides the grounds provided in the Act, there is nothing else that may invalidate such marriage.
The conflict of law rules relating to marriage contracted by any party in the UK, be it Ugandan or UK citizens, are that Uganda law will recognise marriage celebrated and recognised in the UK as valid, and similar treatment will be afforded in the UK to marriages celebrated and recognised as valid in the countries where they are celebrated.