Assessing the Fairness of Ugandan Inheritance Law for Cohabiting Spouses: A Critical Analysis

Introduction

This essay will discuss the assertion that the law on inheritance for cohabiting partners in Uganda is unfair. In Uganda, cohabitation refers to a man and woman living together as husband and wife without having undergone a formal marriage ceremony recognised by law. While the judiciary has made efforts to protect long-term cohabiting partners, the legislative framework remains largely silent on their rights, particularly concerning inheritance. This essay agrees with Aggrey’s statement, arguing that the absence of direct statutory protection and the reliance on uncertain judicial remedies creates a legal position that is precarious and often unfair for the surviving partner.

The Legislative Position on Inheritance

The primary legislation governing inheritance in Uganda is the Succession Act (Cap 162), as amended. The Act sets out a clear order of inheritance for the estate of a person who dies intestate (without a valid will). It makes specific provisions for the deceased’s spouse, children, and other dependants. However, the Act defines a "wife" or "husband" in the context of a legally recognised marriage, which includes civil, customary, Christian, Hindu, or Islamic marriages (Ssentongo, 2018).

Crucially, a cohabiting partner, often referred to as a ‘common law spouse’, does not fit within this statutory definition. Consequently, upon the death of one partner, the survivor has no automatic right to inherit from the deceased's estate under the rules of intestacy. They are not considered a legal heir, which is the foundational source of unfairness. This means that a person who may have lived with and built a life with the deceased for many years can be left with nothing, while more distant relatives benefit from the estate.

Judicial Interventions: The Presumption of Marriage

In response to the potential for injustice, Ugandan courts have developed the doctrine of "presumption of marriage". This doctrine allows a court to presume that a valid marriage exists where a couple has cohabited for a significant period and has gained a reputation in their community as being husband and wife. This provides an avenue for a cohabiting partner to be recognised as a legal spouse for the purposes of inheritance.

A key case is Muwanga v Kiseska [1983] HCB 48, where the court held that long cohabitation as man and wife gives rise to a presumption of marriage. Similarly, in Administrator General v Teddy Bukirwa & Anor (Civil Appeal No. 111 of 2014) [2017] UGCA 33, the Court of Appeal upheld the presumption. In this case, the respondent had cohabited with the deceased for over ten years, had children with him, and was known publicly as his wife. The court found that these facts were sufficient to establish a presumption of marriage, which had not been rebutted by the appellant. This allowed her to be recognised as the deceased’s widow and thus inherit from his estate.

The Continuing Unfairness

While the presumption of marriage offers a potential remedy, it does not make the overall situation fair. Firstly, the remedy is not automatic. The surviving partner must initiate legal proceedings to have the presumption declared by a court. This process can be costly, time-consuming, and emotionally draining for a person who is already grieving (Mpairwe, 2020).

Secondly, the burden of proof rests entirely on the surviving cohabitant. They must produce evidence of long cohabitation and public repute, such as witness testimony from neighbours and family. This can be difficult to gather, and the presumption can be rebutted if evidence is brought to show that the parties did not intend to be married. This uncertainty means that protection is not guaranteed.

Finally, this places cohabiting partners in a significantly weaker position than those in formal marriages. A legally married spouse’s rights are automatic and protected by statute. A cohabitant’s rights, by contrast, depend on the discretion of a court and their ability to satisfy a demanding evidential burden. This disparity is arguably discriminatory and fails to reflect the social reality where cohabitation is increasingly common. The long-stalled Marriage and Divorce Bill has proposed reforms to grant property rights to cohabitees upon the dissolution of the relationship, but its failure to become law means this legislative gap and the resulting unfairness persists.

Conclusion

In conclusion, this essay agrees that the law on inheritance for cohabiting partners in Uganda is unfair. The Succession Act fails to provide any direct protection, leaving cohabitees outside the statutory framework for inheritance. Although the courts have attempted to mitigate this injustice through the presumption of marriage doctrine, this is an imperfect solution. It creates uncertainty, imposes a significant burden on the surviving partner, and does not provide the same level of security as a formal marriage. Therefore, until there is clear legislative reform that recognises the rights of cohabiting partners, the law will continue to produce unfair outcomes for many Ugandans.

References

• Mpairwe, F. (2020) 'Rights of Cohabitees in Uganda: A Case of Having the Form but Lacking the Substance?' Law in Africa Journal, 2(1), pp. 45-62.
• Ssentongo, B. (2018) Family Law in Uganda. Kampala: LawAfrica Publishing.

Cases

• Administrator General v Teddy Bukirwa & Anor (Civil Appeal No. 111 of 2014) [2017] UGCA 33.
• Muwanga v Kiseska [1983] HCB 48.

Legislation

• Succession Act (Cap 162), as amended.