Assessing the constitutionality of the succession act in protection of property rights of separated spouses in Uganda

Abstract

This study is an exploration of the adequacy of the Succession Act Cap 268 in observance of constitutional provisions in protection of property rights of separated spouses in Uganda. It is a comparison of selected jurisdictions that have adopted the law of interstate succession whose results have been applied to comprehend the adequacy of succession law in Uganda based on which lessons have been drawn to address the underlying inconsistencies and to propose suggestions for improvement of protection of property rights of separated spouses in Uganda. Four main research questions were explored, namely; i) what is the international and national legal regime for the protection of property rights of separated spouses in the context of Uganda? ii) To what extent is the Succession Act consistent with the constitutional provisions on protection of property rights of separated spouses in Uganda? iii) What regional and global best practices exist for the protection of property rights of separated spouses during succession? iv) What legal and policy proposals can be obtained from other jurisdictions to enhance Uganda’s succession law towards protection of property rights of separated spouses? The study submits that the Succession Act Cap 268 contravenes Article 26 (1) of the Constitution of Uganda which states that ‘every person has a right to own property either individually or in association with others.’ This has implied that Section 26(1) fails on ground of right to equality, non-discrimination (Article 21), and the dignity of women (Article 33). This is because the Section appears to disqualify separated spouses from taking any interest in the estate if they were separated from the deceased ‘as a member of the same household’ at the time of death. Secondly, the existing principal law focuses on the physical, functional separation of households rather than just legal divorce. Thirdly, if a spouse is separated, they must prove that they were not responsible for the separation, or that the separation was due to the deceased’s actions, to inherit. Fourthly, separated spouses seeking to claim interest in an intestate's estate must apply to court for a declaration allowing them to inherit within six months of the death of the intestate. Fifth, even if a court allows a separated spouse to inherit, they may only be entitled to a portion of the property acquired before the separation, not the entire estate. Sixth, the protection is not automatic since the court has the discretion to determine what constitutes ‘good cause’ for a separated spouse to inherit, creating uncertainty. Lastly, if a deceased spouse left a valid will, they have broad discretion over their property. Overturning the above hiccups, demands borrowing from a series of achievements from selected jurisdictions that have embraced succession law reforms in the above areas. This study concludes that there is still a huge chance for succession legal standards to improve in Uganda in accordance with legal and policy reforms as suggested by the researcher.