The marriage of 33 years was dissolved due to cruelty
The High Court Family Division has dissolved a 33-year Christian marriage, finding that the union had irretrievably broken down after years of violence, humiliation, and the forced expulsion of one spouse from the matrimonial home.
In her Monday judgment, Justice Celia Nagawa granted a decree nisi dissolving the marriage between Hope Kyomugisha and Friday Herbert Mugisha, which was solemnized on May 2, 1992 at St James Cathedral, Ruharo, Mbarara, and ordered the division of several high-value properties in Kampala, while declining to award alimony.
Ms Kyomugisha told court that what began as a Christian marriage blessed with four children gradually descended into years of fear and instability.
She alleged that soon after the wedding, Mr Mugisha became violent, developed a habit of drunkenness, and repeatedly abused her both at home and in public.
Among the most serious incidents cited was a May 2005 assault at Gabiro, where Mr Mugisha allegedly pushed her out of a vehicle and beat her in a roadside trench, causing injuries that damaged her kidney and required multiple surgeries in Uganda, Kenya, and India.
In assessing the claim of cruelty, Justice Nagawa relied on established matrimonial law principles.
“No conduct can amount to cruelty unless it has the effect of producing actual or apprehended injury to the petitioner’s physical or mental health,” the judge stated.
Mr Mugisha denied the allegations and maintained that he was a loving husband.
He e told court that his Christian faith did not permit divorce and claimed it was the petitioner (Ms Kyomugisha) who deserted the matrimonial home.
However, the court found the petitioner’s account consistent and detailed, noting that she had lived separately for 14 years and had previously filed a divorce petition in 2012.
“The petitioner’s account presents a consistent narrative of violence, humiliation and eventual expulsion from the matrimonial home. The defence consisted largely of bare denials without a coherent alternative explanation,” Justice Nagawa ruled.
On the allegation of adultery, the court found the evidence insufficient. Applying the standard set in Ayiko Mawa Solomon Vs Lekuru Annet Ayiko, the judge held that adultery must be proved to a level producing near moral certainty.
“Mere allegations without supporting evidence cannot suffice,” the court held.
Nevertheless, the judge found that cruelty alone was sufficient to dissolve the marriage under section 4(1)(e) of the Divorce Act.
She also held that the respondent’s conduct amounted to constructive desertion, having made it impossible for the petitioner to continue living in the matrimonial home.
“Where one spouse’s behaviour is so unreasonable that it forces the other spouse to leave, the law deems the spouse whose conduct caused the departure to have deserted,” the judge stated.
Property distribution
On property distribution, the court relied on Article 31(1) of the Constitution and the Court of Appeal decision in Kabuye Robert Vs Nanyonga Teopista, which recognizes both financial and non-financial contributions to a marriage.
The court noted that the petitioner single-handedly raised the children after separation and contributed through homemaking and running a family restaurant.
“No property was bought before 1992,” the respondent admitted under cross-examination, placing most of the disputed assets within the marriage period.
Justice Nagawa awarded the petitioner the residential house in Kirombe, Luzira, and a commercial and residential property in Kitintale, Luzira, while the respondent retained the Mbuya residence, the Bugolobi flat, and a farm in Kazo District, whose ownership was contested and therefore left undistributed.
The court declined to grant alimony, finding no evidence that the petitioner lacked the capacity for self-support.
Alimony refers to financial support that a court orders one spouse to pay to the other during separation or after divorce.
“The evidence before court does not demonstrate that the petitioner lacks the capacity for self-support,” the judge ruled.
Each party was ordered to bear their own costs, with the court observing that the case arose from a long and painful marriage in which both parties have undoubtedly suffered.”
The marriage will be formally dissolved after six months, following the issuance of a decree nisi under Section 36 of the Divorce Act.
