August 25, 2021
10:07 am
divorce, land rights, marriage, matrimonial, property rights
Land & Property Rights

Can one sell off or use matrimonial property as security for a loan without the other spouse’s consent or knowledge?

LAND & PROPERTY RIGHTS

Marriage is a contractual union between a man and a woman who decide to live together as husband and wife for the rest of their lives. Marital property is property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution.

The property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contribute to.

Spouses who are legally married are entitled to property which they chose to call home.
Spouses are also entitled to property they jointly contribute to its acquisition.
Property one of the spouses solely acquires is not matrimonial property unless he or she declares it to be matrimonial property.
Also, property a person holds in trust for the clan is not considered matrimonial property since such a person is a mere trustee but not the owner of the said property.

Contribution with regards to both properties registered in one spouse’s names and joint property is a key factor to be considered to assess whether property falls under matrimonial property. Justice Mwangusya observed that a spouse’s contribution to the acquisition of property may be direct where it is in monetary form or indirect where it is in non-monetary form^[1].

Can one sell off or use matrimonial property as security for a loan without the other spouse’s consent or knowledge?

The short answer to this question is “NO”!

The land act provides for spousal consent to any transaction^[1] in respect of family land as defined by the Act^[2]. Spousal consent is an important aspect as it provides for the security of-occupancy for the spouse.

Further, Section 5 of the Mortgage Act provides that a mortgage of a matrimonial home is valid if a form used in applying for the mortgage is signed by the mortgagor and the spouse of the mortgagor living in the matrimonial home. This provision as well provides for spousal consent.

From the above provisions, one cannot sell off or mortgage matrimonial property without written consent of the other spouse.

Where property is on the threat of being sold off or pledged as security for a loan without the other spouse’s consent, such a spouse may lodge a spousal caveat on the certificate of title of such property.^[3]

JCU helps you to lodge the spousal caveat at the court

You need some assistance?

JCU generally provides free legal services to the vulnerable communities through the following ways.

Legal Awareness. JCU creates legal awareness through community outreaches, online platforms and radio talk shows to sensitize the community about different laws and rights that may include matrimonial property rights.
Legal Advice. JCU provides legal advice to walk-in and call-in clients in regards to many issues including marriage and divorce.
Mediations. JCU also mediates issues relating to matrimonial property and other issues as a means to settle the matters amicably.
Court representation. JCU provides free legal representation to individuals with issues involving marriage and divorce where matrimonial property is in dispute.
Referrals. JCU acts as a referral pathway to and from other institutions that provide assistance to individuals facing issues not limited to matrimonial property rights. These among others include Legal Aid Project of Uganda Law Society, FIDA, Uganda Christian Lawyers Fraternity, World Voices Uganda, UGANET, Uganda Human Rights Commission, Children and Family Protection Unit- Uganda Police Force

Sources:

[1] Section 39 of the Land Act Cap 227 (as Amended)

[2] Section 38A (4) Ibid Family land means land on which is situated the ordinary residence of a family, the family derives sustenance and the family voluntarily calls home.

[3] Section 139 Registration of Titles Act Cap 230.

Further sources: