The “Cohabitation Clause” in the Proposed Marriage and Divorce Bill: Why Proponents are probably on the Wrong Side of History

“As it currently stands, the “Cohabitation Clause” presents an unambiguous problem—the false suggestion that cohabitation is a legally acceptable alternative to marriage.”

SHARING A KISS: Princess Komuntale of Tooro shares a kiss with her husband Christopher Thomas. There is some concern among political operatives that the proposed Marriage and Divorce Bill may weaken marriage and contribute to diminishing strengths of Ugandan communities. PHOTO: The Pearl Guide

SHARING A KISS: Princess Komuntale of Tooro shares a kiss with her husband Christopher Thomas at a recent wedding ceremony. There is some concern among political operatives that the proposed Marriage and Divorce Bill may weaken marriage and contribute to diminishing strengths of Ugandan communities. PHOTO: The Pearl Guide


In most developed countries around the world, the political battle over whether to legally prohibit two unmarried adults (of opposite genders) from associating lasciviously and cohabiting as they please has long been fought and won. But ceremonious marriages have not lost either, partly because shrewd politicians have contrived and promulgated clever laws that essentially make perennial cohabiting frowned upon.  For example, in the United States, there are a host of rights and benefits available to legally married couples including, among others, tax benefits, estate planning benefits, employment benefits, medical benefits, death benefits, family benefits, housing benefits and consumer benefits. Consequently, cohabiters are the losers because, despite your freedom to romantically associate with anyone you like, your life together as a couple gets progressively better when you formalize your relationship by engaging in a legally accepted form of marriage.

In Uganda, the proposed Marriage and Divorce Bill has thrust upon the general public the need to closely examine and confront some time-tested marriage customs. It is Uganda’s first attempt at crafting comprehensive and workable laws governing married couples since Independence. Key provisions in the proposed Bill include prohibiting marriage before age 18 years, prohibiting same-sex marriages, banning widow inheritance without the free consent of the widow, in addition to stipulating acceptable grounds for divorce petitions. The Bill trivializes the customary payment of bride price as a first step toward marriage, making bride price optional and outlawing outright the practice of returning marriage gifts upon the dissolution of the marriage. Some traditional leaders and political honchos are not amused, arguing that long-held traditions should not be unraveled by the government without proper community consultations and sensitization. But one clause in the Bill regarding cohabitation has generated the most controversy, pitting some women Members of Parliament against their male counterparts as they jostled over whether cohabiting couples deserve recognition in relation to property rights.

Defining the Problem

Recently, brouhaha erupted inside the House when some MPs suggested a clause that recognizes the property rights of cohabiting couples be expunged from the proposed Bill. But the muddled arguments over whether cohabitation is morally right or wrong have clouded the real issue, and perhaps weakened the overall purpose of the Bill. Both proponents and opponents of the “Cohabitation Clause” lack a clear definition of what the problem is, and often fail to adequately assess how this clause will address such a perceived problem.

Section 117 of the 2009 Marriage and Divorce Bill states “Two persons…cohabiting or married may make an agreement with respect to the ownership of (a) separate property of each spouse or cohabitee; (b) property acquired during the marriage or cohabitation; or (c) distribution of property acquired during the marriage or cohabitation.” This particular clause and subsequent subsections in the Bill relating to property rights make little effort to distinguish between rights available to legally married couples viz-a-viz cohabiting couples. It can be argued that when it comes to property rights, the proposed Bill essentially elevates cohabitation to a form of marriage, bestowing equal protections for cohabiting couples as legally married couples. This is odd, because unless the authors of the Bill wittingly sought to blur the line between rights and privileges of legally married couples and cohabiting couples, it is inconceivable that they would confer, by letter of a proposed law, equal property rights and protections for married and cohabiting couples. As it currently stands, the “Cohabitation Clause” presents an unambiguous problem—the false suggestion that cohabitation is a legally acceptable alternative to marriage.

Such a proposal has several important ramifications that we cannot afford to ignore, chief among them being the trivialization of marriage as we know it. If passed, the Bill would encourage an upward trend in cohabitation among young adults with more and more men choosing the easy-as-pie option in order to circumvent wedding meetings and/or preconceived notions of expensive wedding ceremonies. Proponents of the Bill argue that men deserve such an option, because it is necessary to gauge the palatability of relationships before a life-long commitment is reached. This testing-the-waters-first argument is silly, because there is no factual basis for it; in fact research shows that couples who cohabit before marriage are more likely to have marriage breakdowns than those who don’t. Thus, the idea that cohabiting provides for strong marriages thereafter does not hold water. It is also worth remembering that some of the happiest marriages in Uganda have been registered among traditionally married couples in communities where cohabiting before marriage is considered a socially reprehensible behavior.

The “Cohabitation Clause” also portends unprecedented problems for sustainability of the family. The legal boundaries within which current cohabiting couples operate are certainly flexible, which indicates the potential for on-and-off partnerships between the parents of children born in such relationships. And herein lies a second problem: children born to cohabiting couples are more likely to live in a single-parent household given the inherent fluidity of cohabitation practices, particularly in urban areas like Kampala. Thus, although Mr Kahinda Otafiire and other proponents of the Bill contend that the “Cohabitation Clause” makes it possible to protect the rights of children born in such relationships, the contrary is equally plausible. Children perform better academically and socially when both their parents are actively involved in their childhood, and because cohabiting couples are more likely to split than married couples, children eventually emerge as one of the losers, with significantly diminished chances in life.

Perhaps the most important assertion by proponents of the “Cohabitation Clause” is that current laws give women “no right” to land and property accrued in such relationships, and therefore women ought to be protected when such relationships dissolve. For proponents of the Bill, property rights, particularly for women in cohabitation, represent the Holy Grail of the whole debate. Women activists pulled all the stops to ascertain that appropriate wording recognizing property rights of cohabiting couples were inserted in Section 117 and subsequent associated sections. Activists calling for land and property rights of women in cohabiting relationships should not be ignored; these arguments certainly merit consideration. But the best approach to this “problem,” considered so by proponents of the “Cohabitation Clause,” is for all interested parties to ask and answer three important questions:

The Important Questions not being asked

Opponents of the “Cohabitation Clause,” when asked to justify their antipathy toward the practice of cohabitation, often readily quote the Bible or the Quran as a principal rationale; in other words, cohabitation is religiously wrong. Following a boisterous debate among Members of Parliament, Lwengo Women MP, Ms Gertrude Nakabira, likened cohabitation to “outright prostitution” and declared that she would never support laws that encourage children to go against “church laws,” demonstrating wittingly or unwittingly the influence of personal religious views in shaping her opinion of the immorality of cohabitation. But debating the rectitude of cohabiters simply misses the point and unnecessarily condenses a complex social issue into a black-and-white notion of right versus wrong. I propose that the following questions be satisfactorily answered before any deal is reached on the “Cohabitation Clause.”

(a)    Based on rigorous data collection and analysis, what fraction of Ugandan adults aged 18 to 49 is legally married, and what is the proportion of cohabiting couples? How do these fractions break down regionally, and in rural versus urban communities? Activists have suggested data that are all over the map. Ms Francis Birungi Odongi, senior program officer for the Uganda Community Based Association for Child Welfare, recently put the percentage of persons in cohabitation at eighty percent of all [unmarried] relationships. But this is a questionable number—are we looking at University students, High School students or people in the workforce? This statistic also begs another question: what proportion of current cohabiters has plans to marry in the near future? Given the current social climate, it is highly unlikely that eighty percent of people in unmarried relationships intend to cohabit for life. Unless we get a better handle on relevant marriage and cohabitation statistics (something better than the general UDHS questionnaires), debating the merits of the “Cohabitation Clause” is an exercise tantamount to a little child who plays with an engaged mouse trap believing it to be a toy—it takes only a few moments before he gets himself in big trouble.

(b)    Pundits are often quick to point out that cohabitation is rising among young adults, albeit with sketchy statistics. Current understanding of the drivers of cohabitation practices often center on the influence of western cultures, the so-called test-the-waters-first stratagem, and other socio-economic factors (e.g., weddings are perceived to be an unnecessarily expensive undertaking). But if cohabitation is truly on the march, and Ugandans are increasingly ditching ceremonious marriages in favor of perennial cohabiting, it behooves all stakeholders to determine unambiguously why that is so. It is only logical that we develop a thorough understanding of a problem before we attempt to craft a workable solution.

(c)    In relation to property rights of cohabiters, and corroborated by irrefutable evidence, what is the proportion of previously cohabiting women that have suffered substantial property losses? How significant is this measure, and how does this compare with women in previously dissolved legal marriages? It is not enough to simply assume a problem exists; when we are dealing with the law, it is imperative that we comprehensively back up our claims.

The answers to these three questions, and I hope we can answer them sooner rather than later, should paint a much clearer picture of the supposed importance of the “Cohabitation Clause.” The arguments presented here clearly suggest that there is a lot more at stake here, and that it will probably be better to address cohabitation independently from marriage, marital privileges and divorce. There is also another reason why any action on cohabitation should be delayed: public opinion is evidently skewed against it. It is likely that the majority of Ugandans, even if properly enlightened on the merits of the “Cohabitation Clause,” will still oppose it, because the current configuration of the proposed rights, duties and privileges of married and cohabiting couples can easily be construed to represent a direct assault on legal marriage.

Why Proponents of the “Cohabitation Clause” are probably on the Wrong Side of History

There is a reason why developed nations like the United States have a myriad of state benefits and protections only accessible by legally married individuals. The importance of marriage (whether customary, religious, civil, Bahai or Hindu) cannot be overstated. This millennia-old institution confers responsibilities and rights upon parents, equipping them to nurture their family, which in turn represent the bastion of societal values, mores and norms and a training ground for society’s institutions. Social scientists acknowledge that something transformational occur upon the pronouncement of those magical words, “…till death do us part,” and that a public commitment to each other allows parents to participate in a family structure that produces the best outcomes for children. Social scientists also note that cohabiting mothers are likely to have lower education, to be younger, to have poorer psychological adjustment, less social support, and less money than the married mothers, and tend to provide the worst environments for raising children than married mothers. Research indicate that these disadvantages of being born to cohabiting parents extend into childhood and adolescence, even when the cohabiting couple still consists of the two biological parents. If we project these life outcomes (for children born to cohabiting mothers) into adulthood, we wind up with a diminution in pretty much every measure of community life, values and customs. The result is a disaster for communities, and prudent lawmakers should take heed, and carefully calibrate their legislative actions to reflect the greater good of Ugandan communities.

Because it is difficult to gauge how the proposed Bill will contribute to a diminution of marriage and a gradual collapse of the family structure, it is perhaps critical that we err on the side of caution. Protecting marriage should rank high on our list, not only because marriage is the proven viable institution for safeguarding the longevity of our communities, but also because we are on the precipice of making an important law without doing the tough job of gathering pertinent data and gaining a comprehensive understanding of the intended and potentially unintended effects of such a Bill, should it become law. Even if there were only a one-tenth-of-one-percent probability that this “Cohabitation Clause” will contribute to the deterioration of marriage—given all that we know about the importance of marriage—a strong case can be made that proponents of the “Cohabitation Clause” will be on the wrong side of history.


Categories: Opinion

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