We have noticed that there has been a big disconnect between what the law says and how these laws translate into what a person or family should do when there are family issues that involve the law.
It often gets even murkier when children are involved. While this is true that children and families in general, have protections under the law, many of us believe, for instance, that children’s rights are things like medical care, food, school fees and other basics that we hear the police and lawyers refer to as children’s rights. We also find a lot of confusion around issues such as when a couple is considered to be married and how to go about separation.
Without a basic understanding of how these laws and rights interact with other family laws or even real-world issues, many people do things that may hurt their partners and children, or refuse advice that they may receive.
It is important to note that what the law says about parenthood only sets a bare minimum and sometimes, it is recommended for individuals to do even more than what the law says.
This document aims to help readers understand the basic terms relating to family, marriage, children, and the common disputes that may arise.
It is separated into categories; you may choose to go straight to the area in which you are interested to learn more or even better, read through the entire catalogue so you can get a more comprehensive understanding of how the law interacts with families.
IDENTIFYING FAMILY MEMBERS
- Who is a child?
According to the law, a child is a person below the age of 18 years.
- Is an adolescent also a child? What about a person over 18 years that is still in school?
Yes, even an adolescent is still a child. This is because a teenager is still below the age of 18 years.
No, a person over the age of 18 is not a child under the law, even if they are still in school. It is the age of a person that determines whether they are considered a child or adult under the law, not their stage of life.
- Who is a parent?
A parent means the biological mother or father or legal adoptive mother or father of a child. When we say adoptive parent, we mean that person who is declared and given permission by a court of law to become a parent of a child and is given full parental rights and responsibility over that child as though this were their biological child.
- Does a person need to be married to be taken as a parent under the law?
No, being a parent has nothing to do with marriage. Therefore, you do not have to be married in order to be regarded as a parent. What is important is that you are the biological father or father or legal adoptive mother or father of the child.
- Is there a difference between children from ‘wedded’ couples and those couples who did not get married?
No, there is no difference between children whose parents are married and those who are not.
The Children laws in Uganda cover all children irrespective of whether they were born while their parents were married or not. They are entitled to the same rights under the law. No child should be discriminated on the basis of their parents’ marital status.
THE WELFARE PRINCIPLE
- What does the welfare of a child mean?
The welfare of a child means a ‘set of rights and facilities which a child must have and enjoy during his or her childhood.’
Under our Ugandan laws, a court, the government or local authority, the welfare of the child must be the top consideration while making any decision concerning a child. This is taken into account whenever we talk about the upbringing of a child, where they live, what property they are entitled to, who they ought to live with etc. You will be seeing this term used often through this document.
CHILD SUPPORT AND MAINTENANCE
When two people get together either as a married or cohabiting couple, very few (if any), set a reminder for the time they will start the divorce or separation. Most couples think of children’s names, the house and where Christmas or IDD will be. However, despite our best-laid plans, disagreements occur and sometimes, a couple must go their separate ways. If/when this happens, the couple must embark on an intentional process of ensuring they put the children first and make the best possible arrangements for them considering their welfare as most important.
- What is child custody?
Child custody is the authority held by a parent of a child or a guardian making them responsible for the decisions in the child’s life and for their welfare. By law, parents automatically have custody of the child unless it is shown that the continued custody is either harmful to the child or is otherwise not in their best interests.
There is physical and legal custody. Physical custody refers to the physical ‘keeping’ of the child under one’s care, while legal custody refers to the general authority to make decisions for the child. It is possible for a parent or guardian to have one type of custody or both at any given time.
- What is the most appropriate way to deal with custody when parents separate according to the best evidence available?
The most appropriate way to deal with granting custody would be to have both parents continue with the legal custody i.e. jointly making decisions that affect the child’s welfare while granting physical custody to the parent who would be in the better position to cater to the child’s welfare such as being more available for the child and ensuring they are appropriately nurtured. The parent in whose hands it can be confidently stated that it would be the child’s best interest to be with.
For example, this may refer to the parent who has the time to look after the child, help with homework, pick and drop the child from school, visiting friends, going to the hospital etc. If a parent does not feel able to do this, then it would not in the best interests of the child for them to claim custody.
- Does child custody determine who keeps the house or the car?
When it comes to child custody, the main determinant is the best interest of the child and the child’s general wellbeing. If it is in the best interest of the child that they should stay in the house or have use of the car to pick them up and drop them at school, for instance, then the parent keeping the child most of the time will be the one who ought to have and may be granted custody of the house or car for this purpose. It is always best for the parents to reach an understanding on such issues amongst themselves.
- Is my child allowed to choose whom he/she wants to stay with?
No. A child is not allowed to choose whom he/she will stay with after a divorce or separation. This is because a child is below the age of 18 years and is considered not to be able to make these important decisions for themselves.
By law, every child is entitled to live with his or her parents or guardians, unless it is not in the best interests of that child, in which case, the best substitute care available is provided for the child. So, the court makes a decision/choice for the child regarding whom they can stay with.
However, if the child is of a suitable age and understanding (old enough to understand the proceedings and make a reasonable opinion in the matter), and if it is considered to be necessary in the circumstances, the court may inquire and get the opinion of the child on whom he/she wants to stay with and why, but this opinion is not binding on the court.
- Can I choose which children I want to keep?
No. You cannot and should not attempt to. This is because every child is entitled to live with his or her parents or guardians and so should not be subjected to a ‘parent’s choice’. This decision, if necessary, is made at the discretion of court and not necessarily a parent’s choice. Therefore, depending on the circumstances, the court may make an order on where the children will stay and who will keep them.
- If we are told that we jointly keep the children, what does it mean?
Joint custody involves the sharing of parental responsibility and involvement in the upbringing of the child as well as physical keeping of the children.
Parents should be aware, therefore, that legal custody is separate from physical custody and it is possible for co-parents to share legal custody but not share physical custody. Legal custody, which determines which parent has the legal authority to make major decisions for the child (e.g. religion, schools to attend, health decisions etc.) is often held jointly by the parents even when physical custody is granted to only one of the parents.
Joint physical custody would mean that the parents share the time they spend being in physical control of their children’s care and welfare. For instance, one parent may have the children during school periods while the other takes them while they are on holiday.
- Who determines when each of us will be with the child?
The parents should agree on how to share time with their children understanding that it is in the child’s best interest to receive care from both parents. Where the parents fail to agree on who should be with the child when; then it is within the discretion of the court to decide on this based on the best interest of the child.
- Can I refuse to give my child of the opposite sex to my partner?
No, you cannot. This is because your partner is also a parent to the child. The laws say that the child has a right to stay with his/her parents or guardians.
However, if you think that the child will not be safe with the other parent, then you have the right and duty to inform court and ask court to give you sole custody of the child (allow you to stay with that child instead of with your partner). Alternatively, if the issue requires immediate attention or poses an immediate threat to the child, you may also report your concerns to the Local Council authorities or the Family and Children’s Court Unit at Police for them to intervene and determine what the best interest of the child calls for.
The decision by the authorities would be made according to what is in the best interest of the Child and not in the interests of one parent or the other.
It is recommended that children can stay with both parents even when they are separated as a couple unless doing so is harming the child’s development in any way.
- If my partner gets another partner, can this be a reason to refuse to give them custody of the children?
Since both parents are entitled to care for raise their children, you cannot deny them custody simply because you are uncomfortable with your former partner having a new partner. If you are uncomfortable with the situation because you have reason to believe that the child is being placed in harm’s way , then the court allows you to seek a change in the custody order indicating your reasons for the request. You may also, as indicated above, proceed to engage the local authorities or police for their intervention.
- Can a child be involved in divorce proceedings/ can I call the child as a witness in divorce?
Most likely not.
It is not in the best interests of a child to be involved in disagreements between parents. This is because divorce proceedings tend to be nasty and involve taking of sides. It would not be advisable to put the children under the pressure of being pitted against their parents. As such, it would not be best to make a child choose between two parents in a disagreement by being a witness.
In some cases, involving custody of the child, some children may sometimes be called to give an opinion on the custody arrangement. This may be important information that the court needs to determine what custody arrangement is the children’s best interests.
In the event that a child is called upon to give this or other opinion to assist the child in making this decision, they would have to have first undergone a voire dire (a mini-trial) to determine whether the child is competent enough to stand as a witness in the matter.
- If I came with my child into the marriage, can my partner ask for my child when we divorce?
The parent of a child is entitled to custody of a child by law unless it is not within the best interests of a child. If upon getting married, your spouse legally adopted your child, then they became the parent of the child as well. Accordingly, they would be entitled just as any other parent, to apply for custody. And, if it is in the best interests of a child to stay with their adoptive parent, then the court may order it.
- Child support?
Child support is money or other form of assistance provided by a parent of a child to facilitate provision of the basic needs of a child as well as general welfare for example food, clothing, shelter, medical expenses, and school fees as well as things like utilities, travel costs, textbooks etc.
Child support may be provided directly or indirectly. Directly would refer to direct provision of the money to the child’s carer or the school, landlord etc. depending on the item in question.
Indirect would refer to the provision of control over a source of income that can then be used to provide the child with their needs. For example, if you own rental properties, you can give control of some of them to the child’s carer so that the rental income that is paid provides for the support and maintenance of the child.
- Are only biological children entitled to child support?
No. Child support is a right of every child.
According to the law, a child is taken as being either a biological or adopted child. A parent has a duty to take care of all children under their care because of a birth, guardianship or adoption order by court.
- If we decide to go our separate ways and we didn’t really ‘get married’, how do we go about children?
As parents, you can and should aim to agree on who will have physical custody of the child, and how decisions involving the child will be made. It is highly recommended that parents carry out their parenting duties together to ensure that the child benefits from the parent’s joint involvement. However, if there is no agreement on how the custody of the child will be handled, you may apply to court to have the custody of the children determined by the court.
Remember, custody of the children is granted depending on which parent would best cater to the welfare for the children and the parent in whose hands it would be the best interest of the children to be with.
- Who can ask for child support? Whom can you ask for support from?
Providing for a child is the responsibility of both parents. Therefore, the parent that has custody of a child can ask for child support from the other parent who is not providing for the child.
- Is maintenance different from child support?
No, child maintenance is not different from the child support. Both are meant to cater to the welfare of a child.
However, if you were legally married and are getting divorced, there is a possibility of requesting and being awarded maintenance which is financial assistance to enable the former spouse to continue being able to take care of themselves if they used to be dependent on you during the marriage. In this case, the maintenance, which is referred to as ‘alimony’ is independent from child support and meant to cater to the needs of the former spouse.
- Does how much money I have/make determine who keeps our child?
No, it does not. In making the determination regarding who keeps the child, the courts consider the welfare of the child as the top consideration. Issues such as which parent will have time for the child, who is able to cater for the emotional needs of the child, among others would help the decision maker to determine who ought to keep the child or who obtains a custody order for the child. This is because a child needs more than money to ensure their wellbeing.
So even when a parent has enough money but will not be in a position to look after the physical needs of the child, then the court may not give this parent custody of the child since this is not in the best in interest of child. In any case, the parent with higher financial ability, if they are unable to cater for the child’s welfare, may be ordered to support the parent who can do so by providing financial assistance while the parent best able to care for the child retains physical custody.
- Is it only the father supposed to pay bills for the child?
No, both the parents of a child have a legal duty to care for the child. This includes paying the costs involved in caring for the child and raising. As such, they would ordinarily be expected to share the financial burden. However, in some situations, one parent may have the financial ability to provide for their child while the other does not. In this case, whichever parent happens to be more financially able to cover the child’s bills, is expected and required by law, to do so.
- If I am ordered to provide maintenance, does it mean that I will have to do it for the rest of my life?
Not necessarily. If it is supposed to be spousal maintenance, it is supposed to be until such a time as your partner can financially take care of themselves or until they remarry or as the court orders.
On the other hand, child maintenance is supposed to continue until a child is 18 years of age. Of course, most children are not financially or at all independent by this age and as such, parents are expected to do their best to provide the best for their children until they are reasonably able to look after themselves.
- Is my salary the only one supposed to be for paying fees, medical bills etc for the children?
The law says that it is the duty of each parent to provide for needs of a child. All children need education and guidance, immunization, adequate diet, clothing, shelter and medication, among others. This means that it is not only one salary that should be the means for giving your child all such necessities.
However, if through some unfortunate circumstances such as unemployment of one of the partners, they became unable to provide, then the law will not punish him or her for this inability. Therefore, while your salary is not supposed to be the only one used to take care of the child, if your salary is the only one available, you cannot abscond from providing for your child. The law punishes refusal to provide, and not inability to provide.
- Which parent is responsible for looking after children at home?
The law says that children have the right to know and be cared for by BOTH their parents or those entitled by law to bring them up. This means that it is not the responsibility of one parent to look and care for children. Although there is no fast and hard rule that spells out that a particular parent has the role of looking after the children at home, both parents should take initiative when it comes to the wellbeing of the children.
- Who is supposed to determine the schools the children go to?
The law says that every parent has parental responsibility to their child. Parental responsibility means that it is the job of both parents to protect, maintain and ensure that the child is cared for. This involves making health, education and other such decisions regarding their children. Therefore, since both parents have this responsibility towards a child, they are both supposed to discuss and decide which school is best for the child given their specific circumstances.
The law allows the parents to decide on schools based on things such as how much money do the parents have, and what schools can they afford. It could also be a question of where the parents stay, a school close by may be chosen so that the parents can still keep tabs on their children. If it is done in the best interests of the child, the law will not interfere.
- If the parents are not suitable for making decisions for the child, what happens to the child?
A parent cannot decide that their fellow parent is not suitable to take care of their child. This is the role of the court. If the court believes that it is true that the parents are unfit to exercise parental responsibility over the child, for reasons such as that they may suffer any significant harm, then the court can make different orders to protect the child.
Temporarily, the court can allow a child to be supervised by a probation and social welfare officer while leaving the child in the custody of his or her parents or relatives. This order will be made to determine how serious the allegation made against the parents are. It is called a supervision order.
However, if the matter is confirmed to be serious and harmful to the child, the court can send a child to an approved home or to live with an approved foster parent. This order shall be given for a period not exceeding 3 years up to when the child reaches a majority age of 18 years. This called a care order.
- What happens if the offending parent’s behaviour improves?
If the parent changes their behaviour and removes the circumstances that made them unfit parents, they can apply to court to have the order removing the child reversed. If the court is satisfied that they have recovered their decision-making capabilities and they are willing to carry out their parenting responsibilities, it may recall this order. However, if it is found that the circumstances have either not changed or not improved, the court may assign the children to either a close relative or guardian. (This is called a care order)
- When should I go to court for child support?
The law expects a parent to care for their children and ensure their wellbeing. This is a duty for both parents. If one parent has the means to provide, but still refuses to do so, it is a criminal offence known as child neglect. Upon conviction for child neglect, one may be sentenced to imprisonment for a period of up to two years.
However, it is important to always try to resolve such matters amicably since the child develops better where the parents are cooperating in raising that child. First, there is the option of reporting the refusal of a parent to provide for their child to the local authorities (LC) or the Child and Family Protection Department of Police, so that through their intervention, the non-cooperating parent may be influenced to do his/her duty.
If this should fail, then a parent can apply to a court for child maintenance or even report a case of child neglect as mentioned above. A person may go to court for this support while pregnant, during marriage, divorce, separation or even if the two parents are living apart if the child is below eighteen years of age. Child support is the duty of all parents and it cannot be dodged.
- At what point of the wedding ceremonies should I consider myself married?
In Uganda, there are different forms of marriage and each of them dictates the rules around formalisation of the marriage. Under the traditional marriage, for instance, one may consider themselves married once the traditional rites and rituals accepted by the bride’s tribe to constitute the formal conclusion of a marriage have been performed. In some cultures, this could be once the bride wealth has been received, in others, it is when the father of the bride formally hands over or drops off the bride to the groom and his family.
However, for religious and civil marriages, there are formalities such as wedding vows, exchanging f rings and signing of marriage certificates. For these, although all the necessary stages must be conducted, the signing of the Marriage Certificate is the point at which you can consider yourself married.
- Do I need a marriage certificate to show am married?
Not necessarily. However, a marriage certificate is a conclusive proof that one is legally married.
For civil and religious marriages, the registration of the marriage is what is needed to show that there was a marriage. While for traditional marriages such as Kwanjula for the baganda, the completion of the Kwanjula ceremony and payment of the bride wealth, among others, may be used as evidence to prove that one is married.
- Is the certificate I got from the clan at my introduction proof of marriage?
No, it is not. Marriage Certificates under the Customary Marriage Act are to be issued by either the sub county chief or the Town Clerk. The certificate issued by the clan is therefore mostly for ceremonial purposes, but it has no validity under the law.
- What do I do so I do not marry ‘air’?
In order to ensure that you do not enter marriage illegally or unlawfully, there are two things to look out for;
One, make sure the person you want to marry is ‘Single and Searching’, divorced or if they are already married, that they are in a polygamous marriage that you are going to join as well. Note: You cannot ‘join’ a monogamous marriage such as a church or civil marriage. You may, however, ‘join’ a customary marriage, or an Islamic marriage. Note: You cannot lawfully ‘kwanjula’ a person who is married monogamously already for example a person that has had a prior ‘church marriage’ with another person. Under the law, to ensure the person you are marrying is not already married to another person, you may request a ‘single status letter’ from URSB from that person.
Two, make sure you follow the procedure the law provides. If it says the church must be licenced, then do not go to your favourite pastor friend who did not register to wed people. Make sure you observe the rules about time (you cannot marry at midnight), and make sure the venue is also licenced or you have an exemption letter etc.
- Do I need to confirm that the church I want to wed in has powers to wed me?
Yes, you do. This is because a marriage will only be valid if it is celebrated in a licensed place of worship, and by a recognised Minister. If not, then the law will not recognise your marriage even when you have photos or other evidence of the ceremony having been performed.
PROPERTY DURING SEPARATION AND DIVORCE
- Is there a difference between a divorce and separation?
Yes, there is. Divorce is the formal ending of a valid, legally recognized marriage. Once conducted, the law looks at the couple as if they are single again. On the other hand, separation is where the couple decides to live separately from each other. It does not mean the marriage has ended in the eyes of the law and it is taken that they are still married to each other. In fact, separation is possible even when a couple is living within the same roof such as when they have separate bedrooms.
A divorce can only be granted by a court of law after one person proves their reasons for desiring it, while a couple does not necessarily need the court to separate, although they may also decide to use the courts for a more formal separation.
- Can we automatically divorce if we agree that we cannot continue the relationship anymore?
No. A divorce can only be granted by a court of law after one person proves to court why they want to end their marriage. At present, a person can ask court to end their marriage if that person accuses their partner of adultery, cruelty, desertion, among other reasons enumerated under the Divorce laws.
The law does not accept the concept of ‘agreeing’ to divorce because it is taken that the couple has agreed to lie to court about reasons that may not exist in order for them to go ahead and commit adultery or do an unlawful thing in the marriage. This is referred to as condoning (agreeing with the other party) and if this is shown to have happened, the court will simply dismiss the application for divorce. (Keep in mind these laws are very old and have never been updated).
- What is matrimonial property?
Courts in Uganda have defined Matrimonial property as that property that a married couple chooses to call home, and any other property that a married couple or either of them contributes to, directly or indirectly, and may be registered in their joint names.
It does not matter whether such property is registered in the names of either the husband or the wife, the law may still take it to be matrimonial property.
Note: The written parliamentary laws have however not yet passed any law describing exactly what matrimonial property is or should be.
- Who owns the property we get while we are married?
This depends on several things. If both spouses have contributed either directly or indirectly in acquiring this property, then it belongs to both of them (matrimonial property). Indirect contribution has been shown to include the domestic role played by one spouse to take care of the family and enable the other make a living for the family. If the property is the place that they call their marital home, then it belongs to the couple.
The laws in Uganda allow people to own property can either be jointly or separately in a marriage. Therefore, all other property that the couples get independently is owned by the person that obtained that property as long as there is no contribution by the other spouse.
- Does my property automatically become owned by ‘us’ when we get married?
Except for the matrimonial house, (that property the couple choose to call home), other property does not automatically become owned by ‘us.’ There must be proof that both spouses contributed either directly or indirectly to the property in question for the court to decide that it is owned by both. For example, if one spouse moves into the house that was originally owned by the other spouse after they get married, then it automatically becomes their matrimonial property (‘Our Home’); however they cannot simply claim to own the other things that spouse had before marriage on the basis of being married to them.
Likewise, property that an individual owned before the marriage or even that was acquired during the marriage and is not matrimonial property does not automatically become jointly owned by the couple during their marriage. This kind of property is referred to as individual property until proven otherwise.
- How can I separate ‘my’ property from ‘our’ property before or after we get married?
A prenuptial agreement would be the best safeguard. This is an agreement that lists what each spouse owns and is entitled to before, during and after marriage. Although not popularly relied upon, it should be noted that the Divorce Act in Uganda recognises prenuptial and postnuptial agreements in civil marriages and states that courts ought to inquire of the existence of these agreements (section 27 of the Divorce Act) when dealing with property at the divorce stage.
An antenuptial/prenuptial agreement (“prenup” for short) is a written contract created by two people before they are married. A prenup typically lists all the property each person owns (as well as any debts) and specifies what each person’s property rights will be if the marriage ends in divorce.
On the other hand, a post-nuptial agreement is entered into during the marriage. Like a Prenuptial Agreement, it sets out the couple’s agreement in relation to finances and other matters, should the relationship break down in the future. It can deal with such matters as the division of property, division of personal belongings, whether and how much maintenance is to be paid by a former spouse to the other and provisions for children including finances for them.
If you are not in a position to make such an agreement, then the alternative is to make sure that there is no direct or indirect contribution from your partner to property that you wish keep as individual property. Also, ensuring that all property is registered in the name of the person intending to own the property helps provide a starting point to prove individual or joint ownership.
- If I buy something for myself while I am married does it remain mine alone?
Yes, it remains your individual property if you independently made the contribution towards its purchase with no intention of it being joint or shared property. Whereas you may ‘share’ it with your spouse or anyone else, the ownership would remain perpetually with you, just as would be the case of anyone buying something for themselves.
- If we do not get married/ “wedded”, who owns the property we get during our ‘good times’?
Unfortunately, pending the signing of the Marriage and Divorce Bill, 2009 into law, the only relationship where there is some level of presumption of the existence of some shared property under the laws of Uganda, is marriage. Without a marriage, it would be a question of providing evidence of joint ownership of the property or in the alternative, providing evidence that it would be contrary to the rules of equity and justice to deny the partner a share in the property.
Therefore, where there is no legal marriage, it is even more pertinent to keep track of the purchase, sharing arrangement and / or ownership of the property to limit the possibility of bitter arguments, loss and stress at a later stage.
- Can the law punish me by giving me no property when we divorce?
By law, there can be no crime unless there is a law saying so and prescribing a punishment (except for contempt of court). Divorce is not a crime so the law cannot punish you for simply asking for a divorce. You are still entitled to your rights as a person even when asking for divorce.
- If we get issues and decide that we must ‘break up’, can we decide on the terms of our divorce before we start asking for the divorce?
You cannot simply take your decision to court when filing for divorce. Divorce is administered through the provisions and directions of the Divorce Act. That means that individual decisions by the divorcing couple hold no ground against what the court will decide based on the law. However, the civil courts have a process of mandatory mediation before a case is heard and it is through this process that the couple, through the assistance of the court officials, may come up with their agreed position in writing.
If what the couple agrees upon does not offend the law and is in the best interests of the children, if any, the court may then adopt this position entirely, partly or in revised form, and make this into the judgment of the court (referred to as a ‘consent judgement’) that will then become binding on the couple.
- What if we only agree to some terms but we completely fail to agree on some parts of the divorce terms?
In a case where the couple reaches an agreement on certain positions such as the custody of the children but fails for instance to agree on how the matrimonial property is to be shared, the court may enter a partial consent judgment for the agreed parts and proceed to have a trial to determine the unagreed parts.
- Can I buy my partner’s share of the property we own during the divorce?
This all depends on what the other spouse agrees to. If the person who has been awarded a certain property is willing to sell it to you, then the law will not stand in your way. However, you cannot refuse to part with the property court has granted to your former spouse and unilaterally choose to pay the person the value of that property. Should they not want to transfer that property, you have no right to force them into any sale.
- Are we supposed to take all our misunderstandings to court?
No, not all disputes or misunderstandings should immediately end up in court. The law encourages alternative dispute resolution mechanisms especially in matters of family. This is because at the end of the day, courts of law do not want families to break up but if they must, it is best that this is handled in the most amicable and humane manner possible. Court should only be a last resort if other mechanisms such as family meetings, counselling, mediation have failed or are unable to resolve the misunderstanding.
- Who can help us when we have disagreements?
Some of the common mechanisms in place to resolve disputes include families and clan leaders; LC courts, the police Family and Children Protection unit and the Probation and Social Welfare officials, depending on the nature of the disagreement. The choice of forum depends on the dispute for example, a defilement case cannot be handled by family members. It is a criminal case that should be prosecuted at court level. However, if it is a matter of requesting child support, for instance, it may be more efficient to have a sit down with LCs, family members or even police to discuss the way forward on how it should be provided since it is best for it to be voluntary otherwise enforcement may prove difficult or tedious.
- Would an agreement made outside of court be binding on the parties when there is an ongoing court case? What would make it so? How would I enforce it?
Yes, an agreement made outside court between the two parties is binding and would be respected by the court. If the parties to the dispute consent to the agreement by signing it in the presence of witnesses and they do not challenge it, then the court will also abide by this. For example, if the parties agree on who is to keep which house in case of a separation, then the court will abide by that decision. However, some agreements cannot be respected by the court, such as an agreement to commit or to hide a crime. The Local council leaders and police can assist on the enforcement process of such agreements.
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