1. “The Law on inheritance by separated spouses is still unfair.

” As per Aggrey LLB

We do not agree that the Law on inheritance by separated spouses is still unfair. The
assertion that the law is unfair is unfounded. The law on inheritance has been extensively
and conclusively provided for under S.26 of the Succession Act Cap. 268, and caselaw as
presented herein. Since we are discussing the fairness of inheritance by separated
spouses, we will define who a spouse is at law, seek to understand what separation of
spouses is and finally discuss the dynamics involved that characterise inheritance both in
testate and intestate situations.

A spouse is defined to mean a husband or wife married in accordance with the laws of
Uganda or in accordance with the laws of another country and recognised in Uganda as a
valid marriage1.

Separation is an arrangement whereby a husband and wife live apart from each other
while remaining married, either by mutual consent (often in a written agreement) or by
judicial decree2;

Position of the law.

Article 31 provides every individual the right to found a family. Article 31 (1)(b)
specifically provides that “a man and a woman are entitled to marry only if they are each
of the age of eighteen years and above and are entitled at that age to equal rights at and
in marriage, during marriage and its dissolution 3.” Justice Godfrey Namundi, contends
that, “Men and women are entitled to equal rights in marriage, during marriage and at its
dissolution4.

Article 26(1)5 provides protection from deprivation of property. Every person has a right
to own property either individually or in association with others. Subsection 2 of the latter
provides the exceptions to the general rule. It is now settled law that at the termination
of marriage, a spouse is entitled, to the extent of his or her contribution, to a share in the
property6.

Section 26(1) creates a general rule that a spouse who is prima facie separated from the
other is not entitled to any interest in the estate in case the other spouse dies intestate.
It provides that a surviving spouse of an intestate shall not take any interest in the estate
of an intestate if, at the death of the intestate, the surviving spouse was separated from
the intestate as a member of the same household7.

In Baguma v Matende, Justice I. Mukanza as he then was, held that; “Molly Matende was
the first wife of the deceased but at the time of the latter’s death they had separated and
was not a wife for the purpose of section 31 of the Succession Act as amended by Decree
22 of 19728. She was not a member of the same household with the intestate at the time
of the latter’s death and could not take interest in the estate of Eldadi Matende 9.

1
S.2 of the Succession Act Cap. 268
2
See Black's Law Dictionary 9th Edn. at page 1487
3
Constitution of the Republic of Uganda, 1995.
4
Kolya v Kolya
5
Constitution (Supra)
6
See Julius Rwabinumi Vs Hope Bahimbisomwe Civil Appeal No.10 of 2009
7
Succession Act Cap. 268.
8
Now S.26 of the Succession Act Cap. 268.
9
See Joseph Baguma v Sefuroza Matende, 1991, UGHC 23, 4 November, 199
In Mboijana James v. Mboijana Prophine 10, the defendant widow was separated from the
deceased for 20 years till the time of his death. The issue was whether a wife separated
from the intestate at his death can take grant of Letters of Administration. It was held
that the plaintiff was entitled to the grant of Letters of Administration because the
defendant was separated from the intestate at his death. The defendant had failed to
prove that she was a dependant relative as defined in S.3 of the succession Act 11.
Because the defendant was separated from the intestate at his death, she should have
filed an application as provided by S.31(2) either during the lifetime of the deceased or
within 6 months of death of the deceased, praying that the provisions of s.31(1) do not
apply to her. And the defendant did not file the application therefore she was disentitled
to the estate of the deceased.

Separation in this respect until the dissenting opinion of Justice Mwondha 12 was
interpreted by courts to mean factual and not legal separation. Justice Tibatemwa in her
opinion on interpreting Section 30 13 stated that the section deals with cases where
although the legal relationship between an intestate deceased and his/her partner was
that of wife and husband at the time of death, the parties were not living as members of
the same household. Furthermore, that the section deals with separation as a factual
issue and does not limit its application to legal separation resulting from a court order
i.e., judicial separation. Had the enactors of the law intended to limit the Section to
parties living separately as a result of a court order, they would have specifically said so.

The law provided exceptions to the general rule in S.26 (2), (3), and (4) 14. The exceptions
as discussed herein give separated spouses a chance at justice.

Section 26(3) specifically provides that a separated spouse may for a good cause apply
to court for an interest in the estate of the deceased. Section 26 (2)15 provides some of
the grounds under which Subsection (1) shall not apply. The dynamics of reality may offer
situations handled on a case-by-case basis.

In Elizabeth Wamala v. Jolly Kasande16, the appellant and the deceased got married in the
United Kingdom in 1992 and obtained a marriage certificate. The couple begot one child
but subsequently the man returned to Uganda while the appellant remained in the U.K. In
1999, the deceased entered into a “customary marriage” with the 1st respondent and
four children were born to the couple. Following a brief return of the appellant to Uganda
in 2010, the deceased and the appellant renewed their marriage vows at Namirembe
Cathedral and were issued with a marriage certificate. Thereafter, the appellant went
back to the UK and only returned after the death of the deceased. The appellant
petitioned for grant of Letters of Administration of the estate of the deceased on 13th
March, 2012. However, the 1st respondent, the 2nd respondent (daughter of the
deceased) and the 3rd respondent (brother of the deceased) jointly lodged caveats
against the petition alleging that the appellant was not the right person to apply for the
grant of Letters of Administration. On 1st June 2012, the appellant instituted a suit
against the respondents for orders that the caveats lodged by the respondents be
removed and Letters of Administration be granted to her as the widow. One of the issues
of contention were whether the appellant was entitled to jointly administer the estate.
The Court held that, where the appellant resided in the UK where she was employed as a
psychiatric nurse did not fall under the first exception to the general rule. Furthermore,
she did not apply to court for a declaration that she be exempted from the consequences

10
[1990-91] HCB 10
11
Now repealed.
12
In Elizabeth Wamala v. Jolly Kasande & Ors [CA No. 10 of 2015]
13
Succession Act Cap. 162
14
Succession Act Cap. 268
15
Cap 268 (Supra)
16
CA No. 10 of 2015 (Supra)
of not living in the same household with the husband at the time of his death.
Consequently, by virtue of the provisions of Section 30 of the Succession Act, Justice
Tibatemwa writing the majority opinion agreed with the Court of Appeal that the
appellant cannot take any interest in the estate of her deceased husband, and therefore
was not eligible for a granted Letters of Administration.

Court may however grant an interest in the estate to a spouse who is prima facie
separated from the other at the time of death in case the other spouse dies intestate.
Once the separated spouse provides reasonable grounds for the separation at the time of
death, court may invoke its inherent powers centrally to S.26 (1) of the Succession Act
Cap. 268.

In Nalumansi v Jolly Kasande & Ors, court reviewed its earlier decision and granted the
appellant an interest to her husband’s estate. It was held that; “while considering the
import of section 30(1) of the Succession Act Cap 162, the court record clearly shows
that the marriage between the applicant and the deceased that was upheld by this court
was celebrated in UK. Their residence and the matrimonial home were in UK. The
deceased husband of the applicant was unwillingly and through the operation of the
immigration laws of the UK was deported and forced out of the country. It appears to us
that the physical separation of the two was a forced act of the operation of the United
Kingdom Law. Later the applicant came to Uganda and she and the deceased renewed
their vows at Namirembe Cathedral. The Supreme Court held that Elizabeth Nalumansi
Wamala is the lawful widow and has interest in the estate of her late husband Wilberforce
Noah Wamala17.

17
Elizabeth Nalumansi Wamala v Jolly Kasande & Ors (CA No.29 of 2017)