DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW DAY COURSE 2020/2021(1st Intake)

FAMILY LAW

COURSE TITLE: INTRODUCTION TO LAW

LECTURER: Patricia NYANGOMA (Head of Subject, LDC)

Darius RUTA (Professional Advisor, LDC)

COURSE TITLE: FAMILY LAW

COURSE LEADER: Mr. Precious BEINGA NGABIRANO (Head,

Department of Law & CLE & Professional Advisor, LDC)

TOPIC 3

Learning out comes

1. Effects of marriages

2. Void marriages

3. Voidable marriages

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The legal effects of a marriage;

Getting married leads to the creation of new rights and obligations between the
couple. Among other things, they have a duty to maintain one another, to live
together and they impliedly agree to have sex with each other.

1. A new name.
This is the most obvious change for a woman brought by about by marriage.
However, it is only tradition that requires the woman to take her husband’s name.
In practice most women do. There is no legal obligation and she can retain her
maiden name. Under common law, anyone can call themselves by whatever name
they choose and they can change their name as and when they choose.

2. New nationality
Nationality is a political status of an individual and this is not affected by marriage.
A Ugandan national who marries a foreigner retains his/her nationality. Where the
law permits, he may have dual nationality.

3. New domicile
Domicile, as already noted, is where a person has his/her permanent home or, if
s/he is living abroad, where he intends to have his/her permanent home.

A wife need not acquire her husband’s domicile, although in practice, she will
often do so.

How is domicile decided? At birth, a baby will normally acquire its father’s
domicile, or if the father is dead, its mother’s domicile. This is known as domicile
of origin. After 18, someone can acquire a domicile of choice, depending on where
he intends to reside permanently. A wife ordinarily live with her husband and will

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plan to spend her life with him in his domicile. Thus in practice, she will acquire
that new domicile.

4. A new passport.
A newly married woman is not obliged to have a passport in her name, but if she
chooses to have one, she can.

5. A new bank account.

If a newly married woman adopts her husband’s name, she should ensure that her
bank changes her account name.

6. Presumption of legitimacy.
Familiar to all lawyers, and most laymen, is the age-old presumption that all
children born during the subsistence of a marriage belong to the parties to the
marriage. This presumption can be rebutted by evidence that the husband was
impotent or was away on travel at the time of conception or any other evidence
appropriate to the issue (lack of access).

At common law, an illegitimate child was a fillius nullius (child of no one) and
had no parental inheritance rights. This deprivation was based on religious beliefs,
societal norms and legal principles applicable at the time. With time, public policy
has shifted in favor of protecting every child.

7. A new home.
When a couple marry they impliedly agree to live together; this is the duty to
cohabit and give each other the benefit of their company and support. The legal
phrase for this is “consortium”.

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Courts do not enforce these obligations by making the parties live together or
preventing one spouse from leaving the other. The law regards either spouse as
being free to leave if s/he wishes but, by doing so, that spouse will be in desertion
and so may be liable to be divorced and be ordered to pay maintenance to the
other.

8. Conjugal rights.
Sex is part of the duty to cohabit, for by marrying, the couple impliedly agree to
have sexual intercourse with each other. But as with all things legal,
reasonableness prevails. Marriage is taken as an implied consent to a reasonable
amount of sex. Excessive demands or virtual refusal to have sex will be
unreasonable behavior.

9. Contractual obligations between man and wife.

Marriage is a contract, but courts will not enforce the contract between a husband
and wife. A wife cannot sue her husband for misrepresenting himself as wealthy
while they were courting.

Courts will not interfere with a working marriage. So if a husband arranges to meet
his wife at noon but she does not keep the appointment, he cannot hold her liable
for the losses and expenses he suffered. This is all part of wear and tear of the
marriage.

10.Marital confidences and secrets.

Most married people tell one another things that they would not tell other people. If

necessary, these marital confidences and secrets will be respected by the courts.

So, in a criminal trial, a husband or wife of an accused person cannot normally be

called to give evidence for the prosecution. S/He is a competent but in compellable

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witness. Similarly, in a civil case, whilst the spouse can be called or subpoenaed to
give evidence, the judge will excuse the spouse from answering questions, if to do
so would involve a breach of marital confidences.

Void marriage
A void marriage is a marriage that is unlawful or invalid under the laws of the
jurisdiction where it is entered. A void marriage is "one that is void and invalid
from its beginning.

VOIDABLE MARRIAGE
A marriage which can be annulled or avoided at the option of one or both the
parties is known as a voidable marriage. Voidable marriages which in the eye of
the law are seen as valid. Although due to an irregularity, the marriage may be set
aside and declared to be no longer in existence.

In De Reneville vs. De Reneville [1948] 1 All ER 56, court explained the

distinction between void and voidable marriages. A husband and wife were
married in France, the husband was domiciled there, the wife in England. The wife
petitioned court for an annulment on the ground of none consummation of the
marriage. It was held that the question of the marriage was to be determined
according to French law. The court went to explain the distinction between void
and voidable marriages.

“The substance of the distinction may be expressed thus. A void marriage is one
that will be regarded by every court in any case in which the existence of the
marriage is in issue as never having taken place and can be so treated by both
parties to it without the necessity of any decree annulling it. A voidable marriage
is one that will be regarded by every court as a valid subsisting marriage until a
decree annulling it has been pronounced by a court of competent jurisdiction,”

The following are grounds for void and voidable marriages.

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Void marriages;

 The couple are closely related.

 The couple married under false names.
 Either was under eighteen years at the time of the marriage.
 Certain marriages formalities were not followed. E.g. the marriage was
celebrated in a place other than the office licensed or authorized as place for
celebrating marriages, without the registrar’s certificate of notice or
minister’s license, by a person not being a marriage registrar or a recognized
minister of the faith under which the couple married.
 Permanent impotence.
 It is bigamous.
 The couple are of the same sex.

Voidable marriages;

 No consummation of the marriage because one of the couple was

incapable. Consummation is any one act of sexual intercourse involving
full penetration and a sustained erection. Ejaculation is not necessary.
Premarital sex does not count as consummation.
 Wilful refusal by the other spouse to consummate the marriage. “Wilful
refusal” means a determined refusal, persisted over a period of time. The
phrase connotes a settled and definite decision reached without just
excuse and in deciding whether or not there is wilful refusal, the judge
should regard to the whole history of the marriage. It does not cover
nervous first-night fears! Only one act of intercourse is necessary for the
marriage to have been consummated.
 Lack of consent at the time of marriage (e.g. the spouse was drunk,
coerced, of unsound mind, etc.)
 At the time of the marriage, the other spouse was suffering from a
communicable disease.
 At the time of the marriage the woman was pregnant by another man.

THE END