Property rights refer to a collection of entitlements defining an owner’s rights, privileges, and limitations to the use of a resource. Property is something that is owned. It ranges from land, goods, cars, bank accounts, businesses et cetera. An efficient structure of property rights is said to have three characteristics: exclusivity (all the costs and benefits from owning a resource should accrue to the owner), transferability (all property rights should be transferable from one owner to another in a voluntary exchange) and enforceability (property rights should be secure from seizure or encroachment by others). Property rights also stipulate the rights of possession, use, fruition, and alienation of the subject of the right.
Article 26(1) of the Constitution of the Republic of Uganda, 1995 as Amended provides for the right to own property either individually or in association with others. This implies that one has the right to deal in property with whomever they desire as this provision is not restrictive.
When people get married, the aspect of matrimonial property arises. Matrimonial property is property which the parties chose to call home and which they jointly contribute to. For married persons, the law is in place to protect their interest in such property for instance, the Mortgage Act, 2009 provides for the consent of a spouse when mortgaging matrimonial or family property; the Land Act Cap. 227 provides for consent of a spouse when dealing in family land; the Succession Act Cap. 162 makes provision for a spouse where their partner dies intestate.
However, in case of property disputes between unmarried couples, there is usually a challenge in distribution of property as Courts do not recognise romantic relationships as marriage. It also becomes a challenge for a person to claim from an estate of the deceased where there is cohabitation as a cohabiting partner does not fall within the meaning of spouse under the Succession Act. In Case v Ruguru, Court held that the since there was no valid marriage between the parties, the defendant could not claim a right to the property.
Marriage is an old social institution recognised throughout the world and it is the legal union of a couple as husband and wife.. For one to be married in Uganda, the marriage must be contracted in accordance with the Marriage Act, Cap 251, the Customary Marriage Act, Cap 248, the Marriage and Divorce of the Mohammedans Act, Cap 252, or the Hindu Marriage and Divorce Act, Cap 250 and through this, the properties of the couple are protected unlike people in cohabitation/ de facto unions.
As a status, marriage is an institution necessarily subject to close public regulation. The married couple must conform their behaviour to the state's norms; the individuals involved do not control the terms of the relationship- the parties cannot define every aspect of the relationship without regard to the state's interests. While for cohabitation, their union is not recognized within the Ugandan legislation.
The issue of cohabitation has been a debate in Uganda since 2003; as to whether the years spent while cohabiting amount to presumption of marriage, however, this has not been successful to legislate, unlike in Tanzania where cohabitation is provided for under Section 160 of the Law of Marriage Act of Tanzania as amounting to the presumption of marriage stipulating that where a woman and man have lived together for more than two years and it has been proven, they acquire a reputable presumption of husband and wife. The idea was meant to protect a woman who has lived with a man for a long period of time.
This article shows the status of cohabitation and the position of law in protecting property rights of the parties when there is a dispute as to ownership and when one of the parties dies.
The term “de facto unions”/cohabitation` includes a whole series of many heterogeneous human realities whose common element is that of being forms of cohabitation (of a sexual kind) which are not marriage. De facto unions are characterized precisely by the fact that they ignore, postpone, waive, or even reject the conjugal commitment or fail to perform the ceremonies due to financial constraints among others.
The intention of presumption of marriage is not to create another form of marriage but rather, to protect parties who have not followed the due procedure of contracting a valid marriage.
When couples, both married and unmarried, live together for a period of time, they acquire properties either individually or jointly. Married couples’ interest is protected because their union is provided for in the law. Unfortunately, for cohabiting couples, they are not accorded the same protection and Courts are reluctant in pronouncing such unions as amounting to constructive marriage even though Courts are alive to property obtained by the parties. This is illustrated in Paul Kagwa v Jackline Muteteri, Matrimonial Cause No 23 of 2006, where Court stated that at the termination of a marriage or a relationship including cohabitation, neither spouse walks out of the marriage empty handed. This is in recognition of the fact that each of the spouses makes a contribution towards acquisition of the matrimonial property and this contribution is not necessarily financial.
In Baryamureeba v Kabakonjo Abwooli, HCCS NO 20 of 2013, Justice Adonyo, in deciding a matter on whether a couple that had lived together for twenty-five years was married and whether the suit land constitutes family land, held that the parties were not married despite them cohabiting as the marriage was not celebrated within the laws. With regard to the suit land, Court stated that Section 38 A (4) of The Land Act Cap – laws of Uganda defines family land to mean land— (a) On which is situated the ordinary residence of a family; (b) On which is situated the ordinary residence of the family and from which the family derives sustenance; (c) Which the family freely and voluntarily agrees shall be treated to qualify under paragraph (a) or (b); or (d) which is treated as family land according to the norms, culture, customs, traditions or religion of the family;” Court accordingly found that the suit land falls within the definition of family land under the Land (Amendment) Act 2004. As such it cannot be the subject of a sale without the consent of the other party. Section 38 A (1), (2), (3) of the Land (Amendment) Act provides for security of occupancy on family land. ‘The broader import of this section is to give security to spouses.
Court further noted that in the instant case, although there was no sufficient proof of marriage, the entire section must be interpreted broadly to include even those that are not married as per the laws governing marriages in Uganda. The intention of the legislature was to avoid situations where one party to such unions would try to deprive another of their rights to property through claims that they are not legally married. As such, the court will avoid a strict interpretation of the section, or of the definition of the term ‘spouse’ to prevent absurdities. The Plaintiff and the 1st Defendant lived together for over 35 years, bore children and derived sustenance from the land. Court found that the Plaintiff and the Defendant were constructively married and thus fit within the meaning of section 38 A of the Land Act.
Understanding constructive marriage.
Constructive marriage gives status, rights and recognition to couples who are in relationships analogous to marriage when unmarried couples assume marital duties. It is tested through interdependence and representation of commitment. It should be noted that in the case of Baryamureeba discussed herein above, court decided that the parties were not married within the provision of law, but it recognised the constructive marriage with regard to dealing with the suit property as the family derived sustenance from the land.
How cohabiting partners can own property and identify their rights in the property.
Cohabiting couples can own properties and identify each other’s interest under the different options within the law for instance through co-ownership, partnership and the parties can choose to include themselves in the wills they write.
- Co-ownership- This is the ownership of the property by two or more persons either through joint tenancy or tenancy in common. With co-ownership, the parties would have rights without one taking undue advantage of the other.
- In joint tenancy, property is owned by two or more persons who take identical interests simultaneously by the same instrument, with the same right of possession with a right of survivorship. Upon the demise of one of the owners, the ownership of his or her share of the deceased devolves upon the surviving co-owners.
- A tenancy in common is ownership of property by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship. One’s interest is independent of the other and one can bequeath his interest without affecting the other’s interest in the property
- Wills -A will is a written document expressing a deceased person's wishes, from naming guardians of minor children to bequeathing objects and cash assets to friends, relatives, or charities. A person cohabiting can bequeath their property to their partner through wills so that upon their demise, their partners are given a share of the property.
- Name your partner as a beneficiary in a trust
Cohabitation has been a matter of contention in the legislature of Uganda for a long period of time. The need to legislate on it arises from the need to protect the interest of the parties to the cohabitation where there arises a dispute or where one of the parties dies, the partner is recognised and given a share in the property where the deceased dies intestate. This affects women more than men as women’s contribution to the acquisition where the property is not recognised or documented.
Everyone has a right to property, the Courts have only protected the right of the other party where it has been established that the property in question is family land within the meaning of the Land Act, Cap 227. It is thus necessary to provide a framework within the law, where in case the parties do not identify their interest through co-ownership, there is an avenue through which their efforts in acquiring the property are recognised like it is for legally recognised marriages.
- The Constitution of the Republic of Uganda, 1995 as Amended
- The Succession Act Cap. 162
- The Mortgage Act, 2009
- The Land Act Cap. 227
- The Marriage Act, Cap 251,
- The Customary Marriage Act, Cap 248,
- The Marriage and Divorce of the Mohammedans Act, Cap 252,
- The Hindu Marriage and Divorce Act, Cap 250
- Law of Marriage Act of Tanzania
- Rwabinumi v Bahimbisomwe (Civil Appeal 2009/10) 
- Paul Kagwa v Jackline Muteteri, Matrimonial Cause No 23 of 2006
- Baryamureeba v Kabakonjo Abwooli, HCCS NO 20 of 2013
- Hellen Okello v Akello Ocan High Court Civil Appeal 84 of 2019
- Zaina Ismail v said Mkondo (1982) T.L.R 34
- Case v Ruguru 1970 EA 55 HCK
- Maria Tereza Leopardi Melloa ‘Property Rights and the Ways of Protecting Entitlements – An Interdisciplinary Approach’ (Journal of Contemporary Economics)
- Bryan A Garner, Black’s Law Dictionary (8th Edition, 2004)
- Andrew W. Scott, Estop in the Name of Love: A Case for Constructive Marriage in Virginia (William & Mary Law Review) Volume 49 (2007-2008) Issue 3
- The domestic relations bill, 2003,
- Pontifical council for the family, marriage and “de facto” unions https://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001109_de-facto-unions_en.html
- Andrew W. Scott, Estop in the Name of Love: A Case for Constructive Marriage in Virginia (William & Mary Law Review) Volume 49 (2007-2008) Issue 3.
 Maria Tereza Leopardi Melloa ‘Property Rights and the Ways of Protecting Entitlements – An Interdisciplinary Approach’ (Journal of Contemporary Economics)
 Rwabinumi v Bahimbisomwe (Civil Appeal 2009/10) 
 The Mortgage Act, 2009, Act NO. 9 of 2009
 Case v Ruguru 1970 EA 55 HCK
 Bryan A Garner, Black’s Law Dictionary (8th Edition, 2004) Page 3084
 Andrew W. Scott, Estop in the Name of Love: A Case for Constructive Marriage in Virginia (William & Mary Law Review) Volume 49 (2007-2008) Issue 3
 The domestic relations bill, 2003, provided for cohabitation under Clause 12 and 13 and it was the start in an attempt to legislate on cohabitation in Uganda.
pontifical council for the family Family, marriage and “de facto” unions https://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001109_de-facto-unions_en.html
 Hellen Okello v Akello Ocan High Court Civil Appeal 84 of 2019
 Zaina Ismail v said Mkondo (1982) T.L.R 34
 Andrew W. Scott, Estop in the Name of Love: A Case for Constructive Marriage in Virginia (William & Mary Law Review) Volume 49 (2007-2008) Issue 3, Page 999
 Ibid Page 1002